Lincoln St. Ry. Co. v. City of Lincoln

• Decision Date: 04 January 1901
• Parties: LINCOLN ST. RY. CO. ET AL. v. CITY OF LINCOLN ET AL.
• Court: Nebraska Supreme Court

61 Neb. 109

84 N.W. 802

LINCOLN ST. RY. CO. ET AL.

v.CITY OF LINCOLN ET AL.

Supreme Court of Nebraska.

Jan. 4, 1901.

Syllabus by the Court.

1. Where, under the provisions of the constitution and the statute requiring the consent of a majority of the electors of a city before a street-railway company is authorized to construct and operate a street railway in such city, an ordinance is adopted submitting to the electors the proposition of giving their consent to the construction and operation of a proposed street railway, and in which ordinance it is provided “said railway track shall be so constructed as to present the least practical obstruction to the ordinary public use of the streets, and that it shall, when required, conform to the established grades of the streets as now or hereafter to be established when such streets are brought to grade; and further, said railway company shall be subject to all reasonable regulations in construction and use of said railway which may be imposed by ordinance,”-- held, assuming that such provisions became a part of the charter of the corporation, having the elements of a contract with respect thereto, that an exemption from special assessment was not created, and the legislature was not thereby prohibited from imposing a liability on such corporation to pave the part of the street occupied by its tracks in conformity with the improvement of the remainder of the street, or, in the event of its neglect or refusal so to do, to authorize the levy of special assessments or taxes against the property of such railway company for the costs and expenses necessary to pave such right of way to conform to the remainder of the street improvements.

2. The charter or grant of franchise rights to a corporation is to be construed strictly, and a claim of exemption cannot be sustained which is not in express terms granted, or clearly implied from the terms of the grant.

3. Under the constitution and laws of this state, special charters to corporations, with the exceptions mentioned, are prohibited. Corporations receive their franchises only by general law, and are subject to all the legal rules and statutes as to the reserve power of the lawmaking body of alteration and amendment. The laws of the state and the articles of incorporation are considered in the nature of a grant, and constitute the charter of the company.

4. The provisions for obtaining the consent of a majority of the electors of a city before a street-railway company is authorized to construct and operate a street railway over the streets of such city do not authorize the city to grant a charter to, or enter into a contract in respect thereto with, such street-railway company.

5. The charter rights are derived from the state, and the provisions of the ordinance, under which the consent of a majority of the electors is secured, obligate the street-railway company to construct its street railway within the time and in the manner stated, and make it subject to such regulations as might lawfully be established by ordinance. The corporation is thereby privileged or permitted to enter upon the streets of the city for the purpose of constructing its tracks and to carry out the purposes of its organization, and it thereby derives no other or greater right than a privilege, license, or permission to enter upon the streets for such purpose. Its grant of corporate franchises or privileges is not determined by such ordinance, but by general law.

6. The right of the legislature to require street-railway companies in cities of a certain class to pave the part of the streets occupied by their tracks in conformity with the improvement of the remainder of the streets, or, in case of their failure or neglect to perform such duty, to authorize the municipal authorities to make such improvement, and, by the levy of a special assessment, charge the cost and expense thereof against such street-railway company, which shall be a lien on its property, is a reasonable exercise of the reserve power vested in the legislature, and in no wise violates or impairs the obligation of a contract with respect to the charter of such street-railway company.

7. Whether or not the power may be exercised as a police regulation, or as a taxing power belonging to the legislature, not finally determined.

8. Where, by the charter provisions governing cities of the first class, it is provided that street-railway companies in such cities shall be required to pave that part of the street occupied by the tracks of such companies, and in case of their failure or refusal the city is authorized to perform such work and levy the cost and expense thereof as a special assessment against the property of such companies, such act will not be deemed special or class legislation because not applying to all street railways in cities of different classes throughout the state.

9. By the provisions of the act of 1887 governing cities of the first class, requiring a street-railway company to pave its right of way, and, in case of its refusal and neglect so to do, authorizing the municipal authorities to perform the work and to levy and collect the cost and expense thereof as a special assessment against the property of such railway company, a tax is not imposed by the legislature upon a municipal corporation or the inhabitants or property thereof for corporate purposes; and the act is not violative of section 7 of article 9 of the constitution.

10. The provisions of the act of the legislature of 1887 authorizing a judgment in personam for the amounts levied as special assessments to pay the cost and expenses of paving the right of way of a street railway in cities of the first class do not, even if invalid, render the entire act unconstitutional. The remainder of the act is complete and enforceable, independent of the provisions authorizing a personal judgment. Whether or not the act with regard to a personal judgment is invalid is not determined.

11. The act is not unconstitutional because no provisions are made for the redemption from sales of real estate for nonpayment of taxes or special assessments as provided for by section 3 of article 9 of the constitution. Under the constitutional provision the right of redemption is made secure to all those whose property as therein mentioned may be sold for nonpayment of taxes or special assessments, and the right is secured in the absence of statutory provisions more definitely pointing out the mode by which the redemption may be made. The constitutional provisions are held to be self-executing.

12. Under the city charter act of 1889, governing cities of the first class, an ordinance was passed by the city council creating paving districts, and providing for the improvement of the streets therein, and the payment of the cost thereof by special assessment upon abutting property owners,--the special assessment being levied by resolution, as provided for in section 74,--after which the city council sat as a board of equalization to equalize the assessments, correct errors, etc., and thereupon made the final levy, but not by ordinance. Held, that such levy was valid, and that an independent ordinance making the final levy was not required. Held, further, the provisions of subdivision 2 of section 68, Acts 1887, relating to the levy by ordinance of special assessments and other taxes authorized by statute, do not apply to levies of special assessments or taxes for special benefits received because of local improvements.

13. Where the method for exercising the power conferred by statute upon municipal corporations is specially prescribed, that method must be followed, in order to validate the action taken thereunder; but, where no particular method for the exercise of the power is specified, the city authorities may act by resolution or other appropriate manner, and such action will be as effectual as it would be by ordinance for the same purpose.

14. In four certain paving districts the jurisdiction of the city council to act is challenged on the ground of the alleged insufficiency of the respective petitions of property owners. The council acted on such petitions, finding them sufficient, and thereupon engaged in the work of paving the streets in such district. Held that, as to a street-railway company which is required to pave its right of way to conform to the remainder of the street improvement, it is immaterial whether or not the paving petitions had the required number of signatures. The authority to require the street-railway company to pave its right of way does not depend upon the jurisdiction of the city council to establish paving districts and engage in the work of improving the streets therein by reason of the petition asking for such improvement, but on the statutory ground that when streets are improved by the city authorities it is incumbent upon street railways occupying parts of the streets to pave in conformity therewith the portion they occupy, and upon failure or refusal so to do the council is authorized to perform the work, and, by special assessment, make the cost thereof a charge upon the property of such street-railway company.

15. Where a city engages in the work of paving its streets, and, as a part of the general improvement, grading is done in order to accomplish the main object, held, that the cost of grading, being a part of the general improvement, is properly charged as being incidental to and a part of the work of paving, and that special assessments against a street-railway company for the cost of paving its right of way may properly include the cost of grading, also; the grading being incidental and necessary to accomplish the main object of paving the street.

16. Under the statute, taxes levied as special assessments in cities of the first class draw interest at the rate of 12 per cent. per annum from the time of delinquency, and a decree enforcing a tax lien arising therefrom will...