Merrill v. Shields

• Decision Date: 08 December 1898
• Citation: 57 Neb. 78,77 N.W. 368
• Parties: MERRILL v. SHIELDS ET AL.
• Court: Nebraska Supreme Court

57 Neb. 78

77 N.W. 368

MERRILL

v.SHIELDS ET AL.

Supreme Court of Nebraska.

Dec. 8, 1898.

Syllabus by the Court.

1. The city council of a city of the metropolitan class has no jurisdiction to sit as a board of equalization for the purpose of levying special taxes to cover the expenditures incident to the opening of a street, until the report of the freeholders appointed to assess damages has been made and confirmed.

2. The burden of proof is on the person asserting a lien under a proceeding levying a special tax to show a compliance by the taxing authorities with all essential statutory requirements.

3. The recitals in an ordinance declaring a new street open to public travel are not competent evidence, in favor of a tax-lien claimant, to establish the jurisdiction of the city council to levy a special tax.

Appeal from district court, Douglas county; Ambrose, Judge.

Action by H. A. Merrill against James Shields and others. Judgment for defendants, and plaintiff appeals. Affirmed.H. W. Pennock, for appellant.

Geo. W. Shields, W. D. Beckett, and J. W. Woodrough, for appellees.

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 expense 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...