Merrill v. Shields

• Decision Date: 08 December 1898
• Docket Number: 8511
• Citation: 77 N.W. 368,57 Neb. 78
• Parties: H. A. MERRILL, APPELLANT, v. JAMES SHIELDS ET AL., APPELLEES
• Court: Nebraska Supreme Court

77 N.W. 368

57 Neb. 78

H. A. MERRILL, APPELLANT, v. JAMES SHIELDS ET AL., APPELLEES

No. 8511

Supreme Court of Nebraska

December 8, 1898

APPEAL from the district court of Douglas county. Heard below before AMBROSE, J. Affirmed.

AFFIRMED.

Henry W. Pennock, for appellant.

William D. Beckett, Read & Beckett, George W. Shields, and J. W Woodrough, contra.

OPINION

SULLIVAN, J.

This action was brought in the district court to foreclose a tax-sale certificate on lot 10 of Godfrey's Addition to the city of Omaha. The only question presented for decision here is the validity of a special assessment made against the property to defray the expenses of opening Twenty-second street from the south line of E. V. Smith's Addition to the south line of tax lot 36. The tax is assailed on various grounds, only one of which we find it necessary to consider. By the terms of the statute under which the condemnation proceedings were conducted the necessity for appropriating private property for the use of the public as a street was required to be declared by ordinance. The mayor, with the approval of the council, was then authorized to appoint three disinterested freeholders of the city to assess the damages to the owners of the property appropriated. It was the duty of the appraisers so appointed, after taking the prescribed oath, to make their assessment and report the same to the mayor and council for their action thereon. Upon confirmation of the report, and after having considered the matter while sitting as a board of equalization, the council was authorized to levy a special tax against abutting and adjacent real estate peculiarly benefited by the opening of the new thoroughfare. Until the appraisers' report had been made and confirmed, it is quite evident the council was without jurisdiction to levy a tax. The filing of the report and its due ratification were made, by the statute conditions precedent to the equalization and levy. The burden of proving the existence of these conditions was on the plaintiff, who was asserting the validity of the tax. The law does not imply authority to make the levy from the fact that the levy was made. Discussing this question Judge Cooley says: "It is indeed a presumption of law that official duty is performed; and this presumption stands for evidence in many cases; but the law never assumes the existence of jurisdictional facts; and throughout the tax proceedings the general rule is that the taking of any one important step is a jurisdictional prerequisite to the next and it cannot therefore be assumed, because one is shown to have been taken, that the officer performed his duty in taking that which preceded it." (Cooley, Taxation [1st ed.] p. 329.) The same thought is expressed by POST, J., in the case of Smith v. City of Omaha, 49 Neb. 883, 69 N.W. 402, in the following language: "It is a recognized rule of construction, especially applicable to actions of this character, that those things which the law regards as the substance of the...