Orr v. City of Omaha

• Decision Date: 17 April 1902
• Citation: 2 Neb. [Unof.] 771,90 N.W. 301
• Parties: ORR ET AL. v. CITY OF OMAHA ET AL.
• Court: Nebraska Supreme Court

2 Neb. [Unof.] 771

90 N.W. 301

ORR ET AL.

v.CITY OF OMAHA ET AL.

Supreme Court of Nebraska.

April 17, 1902.

Commissioners' opinion. Department No. 2. Appeal from district court, Douglas county; Dickinson, Judge.

“Not to be officially reported.”

Action by William C. Orr and others against the city of Omaha and others. Judgment for plaintiffs, and defendants appeal. Modified.W. J. Connell, E. H. Scott, and James H. Adams, for appellants.

C. J. Smyth, for appellees.

BARNES, C.

This is an appeal from a decree of the district court of Douglas county declaring certain paving taxes and taxes for curbing and guttering the street so paved null and void, and ordering the treasurer of the city of Omaha, and his successors in office, to cancel the same of record. Appellant contends that the decree should be modified. It does not contend that the tax in question levied to pay for paving is a valid tax. It, however, contends that the tax levied and assessed upon the abutting property belonging to appellees to pay for curbing and guttering the street, which had theretofore been ordered paved, is valid; and that the decree should be so modified as to permit the city to proceed with the collection of the same. It appears from the record and evidence that the paving district in question was created April 11, 1889, and afterwards a petition was presented to the mayor and city council, by what was then supposed to be the owners representing a majority of the feet frontage on the street embraced in said district, praying that the street be ordered paved. Thereupon the city council duly made such order, and gave notice to the property owners to determine the kind of paving material which they desired to have used in carrying out the improvement. The owners, in due time, designated that they desired the street paved with Colorado sandstone on a sand foundation. The city thereupon complied with the request of the property owners, and the street was so paved. It further appeared that the city council ordered the street, within the said paving district, to be properly and suitably curbed and guttered, which was done, and the cost of the same determined and apportioned among the several property owners; and that thereupon a tax was levied for the payment of the same. The city, the appellant herein, now concedes that the petition asking for the pavement of the street was not signed by the property owners representing a majority of the feet frontage abutting upon that portion of the street so paved. The questions involved herein require an examination and construction of some of the provisions of the act of the legislature of 1887, “incorporating metropolitan cities, and defining, regulating, and prescribing their duties, powers, and government.” Laws 1887, p. 105. This act was the city charter of the city of Omaha at the time the proceedings complained of in this action were had. It is provided in section 69 (page 132) of said act as follows: “The mayor and city council shall have power to open, extend, widen, narrow, grade, curb, and gutter, park, beautify, or otherwise improve and keep in good repair, or cause the same to be done, in any manner that they may deem proper, any street, avenue, or alley within the limits of the city; and may grade partially, or to the established grade or park, or otherwise improve in width, or part any such street, avenue or alley, and may also construct and repair or cause and compel the construction and repair of sidewalks in such city, of such material and in such manner as they may deem proper and necessary; and to defray the cost and expense of such improvement or any of them, the mayor and city council of such city shall have power and authority to levy and collect special taxes and assessments upon all the lots and pieces of ground adjacent to or abutting upon the street and avenue, alley, or sidewalk, thus in whole or in part opened, widened, curbed and guttered, graded, parked, extended, constructed or otherwise improved or repaired or which may be especially benefited by any of said improvements.” It is further provided in said section as follows: “The mayor and city council of any city of the metropolitan class shall have power to pave, repave, or macadamize any street or alley, or any part thereof in the city, and for that purpose to create suitable paving districts, which shall be consecutively numbered, such work to be done under contract and under the superintendent of the board of public works of the city. Whenever the owners of lots or lands abutting upon the streets or alleys within any paving district representing a majority of the feet front thereon shall petition the council to pave, repave, or macadamize such streets or alleys, it shall be the duty of the mayor and city council to pave, repave or macadamize the same, and in all cases of paving and repaving or macadamizing there shall be used such material as such majority of the owners determine upon, provided, the council shall be notified in writing by said owners of such determination within thirty days next after the passage and approval of the ordinance ordering such paving, repaving, or macadamizing. In case such owners fail to...