Nelson v. City of South Omaha

• Decision Date: 07 May 1909
• Docket Number: 15,520
• Citation: 121 N.W. 453,84 Neb. 434
• Parties: NELS NELSON ET AL., APPELLANTS, v. CITY OF SOUTH OMAHA ET AL., APPELLEES
• Court: Nebraska Supreme Court

121 N.W. 453

84 Neb. 434

NELS NELSON ET AL., APPELLANTS, v. CITY OF SOUTH OMAHA ET AL., APPELLEES

No. 15,520

Supreme Court of Nebraska

May 7, 1909

APPEAL from the district court for Douglas county: WILLIAM A REDICK, JUDGE. Affirmed.

AFFIRMED.

A. H Murdock and Frank Crawford, for appellants.

S. L Winters and W. C. Lambert, contra.

GOOD, C. DUFFIE, EPPERSON and CALKINS, CC., concur.

OPINION

GOOD, C.

This action was brought by plaintiffs to enjoin the collection of certain special taxes levied against their property by the city of South Omaha for the paving and curbing of a part of thirtieth street in said city, upon the ground that the taxes were void for reasons hereinafter stated. From a judgment for defendants, plaintiffs have appealed.

Plaintiffs assert that the taxes are void for the following reasons: First, that the ordinance creating the improvement district is void because not properly passed; second, because the paving and curbing was not ordered by ordinance; third, because the council ordered the paving and curbing before the expiration of 20 days after the publication of the petition of property owners praying for the improvement; fourth, that 30 days' notice was not given the property owners in which to select the material for paving and curbing; fifth, the city engineer's estimate of the cost of making the improvements was not approved nor adopted by the council; sixth, the council did not approve the engineer's plans and specifications separately and apart from plans and specifications for other public improvements; seventh, the city paid for the paving and curbing by the proceeds of a bond issue, and could not levy a special tax to reimburse itself. These objections will be considered in their order.

Ordinance No. 1257, creating the improvement district, declaring the necessity for its improvement by paving and curbing, and providing for the designation of material to be used in its improvement, is asserted to be void because it was not properly passed. The precise objection made is that the ordinance was not read on three different days, and its second reading was by title only. The record shows that the ordinance was read on three separate days. The second reading occurred at what was termed in the council proceedings "an adjourned meeting." It did not appear that any previous regular or special meeting had been adjourned to that date. It did appear, however, that all members of the council were present and voted to place the ordinance upon its second reading. It is wholly immaterial whether the meeting of the council was a special meeting or an adjourned meeting, and it is immaterial that no call for a special meeting was had. Special meetings may be held at any time by the consent and presence of all of the members of the council. Magneau v. City of Fremont, 30 Neb. 843, 47 N.W. 280; Lord v. Anoka, 36 Minn. 176, 30 N.W. 550.

It is further contended that the ordinance is void because it was read by its title only at the second reading. There are two sections of the South Omaha charter, as it then existed, relating to the manner of passage of ordinances. They are sections 8107 and 8108, Ann. St. 1903. By the first of these sections ordinances of a general or permanent nature are required to be "fully and distinctly read on three different days unless the council shall dispense with this rule by a two-thirds vote of the members elected." Section 8108 provides, among other things, "that no ordinance shall be passed the same day or at the same meeting it is introduced, and no ordinance shall be passed without being fully read on three separate days." These two sections are in seeming conflict. They were both passed at the same time and as a part of the same general act. Construing the two sections together, we think it was the intention to permit the council by a two-thirds vote to suspend the rules and dispense with the reading in full on three different days. Any other construction would make nugatory the provisions contained in the first of these sections for the suspension of rules by a two-thirds vote of the council. Statutes should be so construed, if possible, as to give effect to each and every part thereof.

The record does not disclose that there was any formal motion to suspend the rules, but it does show that all members of the council were present and all of them voted to place the ordinance upon its second reading by title. Defendants contend that this is equivalent to a suspension of the rules. The object of the rule was to prevent hasty and ill-advised legislation and to prevent an ordinance being passed or adopted until read in full on three different days, unless at least two-thirds of the members of the council concurred in its passage or adoption. The record shows not only that two-thirds but all members voted for the second reading of the ordinance, and for its final passage at a subsequent meeting of the council. It appears to us that the passage of a formal motion to suspend the rules by two-thirds of the members of the council would have been an idle formality. Two-thirds of the council could have carried such a motion, and then a majority vote could have ordered the second reading by title. The only case that we have been able to find bearing directly upon the question is Kendall v. Board of Education, 106 Mich. 681, 64 N.W. 745. It was there held that the suspension of the rule would not have to be made in the formal way; that, if two-thirds of the body voted in the affirmative on the matter, it was in effect a suspension of the rules. We think the action of all members of the council in voting for the second reading of the ordinance by title only was equivalent to a suspension of the rules. We therefore conclude that ordinance No. 1257 was properly passed and is valid.

Plaintiffs contend that the paving and curbing should have been ordered by ordinance, and that it could not be lawfully ordered in any other way. The law governing the construction of such public improvements in the city of South Omaha is contained in section 128 of its charter and particularly in subdivision III thereof. The first part of said section 128 is as follows: "In addition to the powers herein granted cities governed under the provisions of this act shall have power by ordinance: I. To levy taxes for general revenue purposes. * * * II. To levy any other tax or special assessment. * * * III. The mayor and city council shall have the authority to create street improvement districts for the purpose of improving the streets," etc. There are a large number of subdivisions of section 128, many of which subdivisions begin with the infinitive, as do the first and second subdivisions. The third subdivision, however, provides a general scheme for the improvement of streets, boulevards and public grounds of the city by paving, curbing, guttering and the like. An examination of subdivision III shows that the first step required is the filing with the city clerk of a petition signed by the owners of a majority of the feet frontage of the district to be improved. Upon the filing of such petition it is mandatory upon the mayor and council to act. There are several places in said subdivision III where certain acts are required to be done by ordinance. For the purpose of paying the cost of improving the streets, the mayor and council is given power to and may by ordinance cause to be issued bonds of the city. Whenever repaving is to be done, said subdivision III requires the mayor and council by ordinance to...