State ex rel. City of Omaha v. Birkhauser

• Decision Date: 19 September 1893
• Citation: 37 Neb. 521,56 N.W. 303
• Parties: STATE EX REL. CITY OF OMAHA v. BIRKHAUSER ET AL.
• Court: Nebraska Supreme Court

37 Neb. 521

56 N.W. 303

STATE EX REL. CITY OF OMAHA

v.BIRKHAUSER ET AL.

Supreme Court of Nebraska.

Sept. 19, 1893.

Syllabus by the Court.

1. The mayor and council of a city of the metropolitan class have jurisdiction to create paving districts without a petition of the property owners being presented to the city council, except where the entire improvement is to be done at the cost of the lot owners, in which case they have no power to act, unless petitioned to do so by the owners of the majority of the feet frontage of the lots in such proposed district.

2. To confer jurisdiction upon the mayor and council of such a city to pass an ordinance ordering the paving of streets in a paving district, a petition praying for such improvement, signed by the owners representing a majority of the front feet of the lots abutting upon the portion of the street to be improved, must be first submitted to the city council.

3. The kind of material to be used in the paving, repaving, or macadamizing of streets shall be such as the majority of the property owners in the paving district shall determine; and, in case such owners fail to designate the material they desire to use in such improvement within 30 days, the mayor and council have authority to make the selection.

4. Bids for paving may be advertised for and received either before or after the selection of material is made; and, if made before such selection, it is not necessary that the board of public works should readvertise for and receive bids after such designation, although they may do so.

5. By section 104 of the act incorporating metropolitan cities, it is made the duty of the board of public works to make contracts on behalf of the city for the performance of such works and the erection of such improvements as shall be ordered by the mayor and city council, but subject to their approval.

Original action in the name of the state, at the relation of the city of Omaha, for mandamus to Peter W. Birkhauser and others, as the board of public works of relator city. Heard on petition, and demurrer thereto. Judgment for relator.

W. J. Connell and F. T. Ransom, for relator.

Geo. W. Covell and R. S. Hall, for respondents.

NORVAL, J.

This was an application for a peremptory writ of mandamus to compel and require the respondents, as the board of public works of the city of Omaha, to enter into a contract on behalf of said city, with the lowest responsible bidder, for the paving of improvement district No. 512, and submit the same to the mayor and city council for their approval, and, on their approval thereof, to cause said work of paving to be done in accordance with the terms of said contract. The cause was submitted at the last term of this court on a general demurrer to the petition, which was overruled by the court, and a peremptory mandamus issued, as prayed. To the writer has been assigned the duty of preparing an opinion expressing the views of the court upon the questions involved in the case.

The facts alleged in the application, and by the demurrer admitted to be true, may be summarized as follows: The city of Omaha is a city of the metropolitan class, having a population of more than 80,000 inhabitants. The respondents, Peter W. Birkhauser, St. A. D. Balcombe and John B. Furay, are the members of the board of public works of said city. On the 14th day of March, 1893, an ordinance was passed by the city council of said city, which was duly approved by the mayor on March 17, 1893, creating numerous paving districts,--among others, street improvement district No. 512, which comprises Twenty-Sixth street, from Farnam street to Half Howard street,--and ordering the curbing and paving of the streets, avenues, and alleys in said districts; authorizing and directing the board of public works to advertise for bids for said work; and giving the property owners in said districts 30 days' notice, within which to select the materials to be used for paving; and making other provisions relating to said improvements. In pursuance of said ordinance, the board of public works, on the 22d day of March, 1893, published a notice in the Omaha Bee--the official paper of said city--that sealed bids would be received until April 7, 1893, of the following kinds of paving materials, viz.: Sioux Falls or other granite, Colorado sandstone, street asphaltum, and vitrified brick, for paving said street improvement districts. After the publication of said advertisement for bids for the length of time and in the manner required by the ordinance, bids were received and acted upon; the bids for asphaltum were rejected, and a second and third advertisement for asphalt bids were duly made and published in the official paper; and bids for asphaltum were thereafter received and accepted by the board of public works. Subsequently, on April 14, 1893, the respondents published, for the time required by the ordinances, a notice, in said official paper of said city, to the owners of the real estate in said improvement district, to designate and select the materials they desired used for paving. After the publication of said notice, petitions of lot owners abutting upon that part of Twenty-Sixth street from Farnam street to Half Howard street, representing a majority of the foot frontage on said part of said street and a majority of the area within said district, were duly presented to the mayor and city council, asking for the paving of said district, and selecting vitrified brick, class A, price $1.89 per square yard, with five years' guaranty, as the material the petitioners desired used in such paving. In pursuance of said proceedings, and in accordance with said petitions, the city council, on the 22d day of June, 1893, duly passed Ordinance No. 3590, which was approved by the mayor the next day, providing for the paving of Twenty-Sixth street from Farnam street to Half Howard street, in said improvement district No. 512. That by the terms of said ordinance the board of public works was ordered and directed to cause said work to be done, and to enter into a contract for the same with the lowest responsible bidder,--the lowest bid being $1.89 per square yard for vitrified brick, class A, 5 years' guaranty,--and expressly required that vitrified brick, class A, be used for said paving. After the passage and approval of said ordinance, a certified copy thereof was furnished the respondents, and it thereupon became their duty to make and execute a contract on behalf of the city with J. E. Riley, who was, and who had been declared by the board of public works, the lowest responsible bidder for said material so designated by said property owners, yet the respondents absolutely and unqualifiedly refused to execute a contract for said paving, or to submit any contract to the mayor and council for their approval, and refused to cause said paving to be done, whereupon this action was commenced.

The respondents claim that the ordinance passed by the mayor and council of the city of Omaha, creating improvement district No. 512, is invalid, for the reason the same was adopted without a petition being presented by the property owners asking for the creation of said district, and the paving thereof; in other words, that the council of a city of the metropolitan class has no jurisdiction, either to form a street improvement district, or to order the paving of the streets and alleys thereon, until there has been first presented to the mayor and council a petition therefor, signed by the owners of lots representing a...