Moss v. City of Fairbury

• Decision Date: 03 December 1902
• Citation: 92 N.W. 721,66 Neb. 671
• Parties: MOSS v. CITY OF FAIRBURY ET AL.
• Court: Nebraska Supreme Court

66 Neb. 671

92 N.W. 721

MOSS

v.CITY OF FAIRBURY ET AL.

Supreme Court of Nebraska.

Dec. 3, 1902.

Syllabus by the Court.

1. The provisions of section 20, art. 1, c. 14, Comp. St., in regard to the making of an estimate of the cost of a proposed improvement, have reference to contracts for laying sidewalks in pursuance of the provisions of section 69 of the same article.

2. The provisions in regard to such estimates are jurisdictional, and the cost of a sidewalk, laid without a compliance therewith, cannot be made the basis of the levy of a special assessment against the adjacent property.

Commissioners' opinion. Department No. 3. Appeal from district court, Jefferson county; Baker, Judge.

Action by Mary R. Moss against the city of Fairbury and others. Judgment for defendants, and plaintiff appeals. Reversed.W. J. Moss and W. H. Barnes, for appellant.

R. A. Clapp and J. C. Hartigan, for appellees.

ALBERT, C.

A third party, acting under a general contract with the defendant city. constructed a sidewalk in front of certain property of the plaintiff in said city. After the completion of the work he filed his bill for the labor and material furnished in that behalf, which was allowed and paid by the city. Afterwards, the defendants undertook to levy a special assessment against the plaintiff's property fronting on such improvement. Before the levy was made the plaintiff brought this action, and obtained a temporary order restraining the defendants from making the proposed levy. On a final hearing, the court found for the defendants, and entered a decree accordingly. The plaintiff is here on appeal.

It is conceded that the city engineer never made, nor submitted to the city council, any estimate of the cost of the sidewalk before the same was laid, or at any other time. The plaintiff contends that such omission is fatal to the proposed levy. The court will take judicial notice that the city of Fairbury is a city of the second class, having less than 5,000 inhabitants. Section 20, art. 1, c. 14, Comp. St. 1901, applicable to cities of that class, so far as concerns us now, is as follows: “* * * Before the city council shall make any contract for building bridges or sidewalks, or for any work on the streets, or for any other work or improvement, an estimate of the cost thereof shall be made by the city engineer and submitted to the council, and no contract shall be entered into for any work or improvement for a price exceeding such estimate; and in advertising for bids for any such work the council shall cause the amount of such estimate to be published therewith.” Section 69, Id., provides, among other things, that, in addition to the powers before granted by the provisions of said chapter, each city and village may enact ordinances or by-laws for certain purposes; and among the purposes enumerated are those contained in subdivisions 3-6, which are as follows:

“3. To provide for the grading and repairs of any street, avenue, or alley, and the construction of bridges, culverts, and sewers, and shall defray expenses of the same out of the general funds of such city or village, not exceeding two mills of the levy for general purposes, but no street shall be graded except the same be ordered to be done by the affirmative vote of two-thirds of the city council or trustees.

“4. To construct sidewalks, to curb, pave, gravel, macadamize, and gutter any highway or alley therein, and to levy a special tax on the lots and parcels of land fronting on such highway or alley, to pay the expenses of such improvement. * * *

“5. To repair sidewalks, and to assess the expense thereof on the property in front of which such repairs are made.

“6. To provide for the laying of temporary plank sidewalks, upon the natural surface of the ground, without regard to grade, on streets not permanently improved, at a cost not exceeding fifty cents a lineal foot, and to provide for the assessment of the cost thereof on the property in front of which the same shall be levied.” (This word refers logically, if not grammatically, to subdivision 2, where the word “levy” is used.)

Subdivision 7 of the same section prescribes the manner in which the assessments for such improvements shall be made.

The defendants insist that there is no relation between sections 20 and 69, supra, but that by section 69 the legislature intended, as stated in that section, to grant additional powers to cities and villages, to be exercised by ordinance. These sections, so far as they relate to the present inquiry, were originally enacted as a part of a general act entitled “An act to provide for the organization, government, and powers of cities and villages.” Laws 1879, p. 193. Section 69 is the only express grant of power governing the subjects enumerated in the subdivisions of section 69, hereinbefore set out. In the absence of such express grant, doubtless, the authority to provide for the improvements mentioned in those subdivisions would have been implied. But the legislature having made such power the subject of an express grant, there exists no implied power, save such as may be implied from the language of the express grant. Section 20, if it has reference to anything, must have reference to the exercise of some power granted by the legislature; as we have seen, such power does not rest in implication, but is conferred by the express provisions of section 69. That being true, the conclusion is irresistible that the...