Trephagen v. City of South Omaha

• Decision Date: 03 July 1903
• Docket Number: 12,988
• Citation: 96 N.W. 248,69 Neb. 577
• Parties: GEORGIA A. TREPHAGEN ET AL., APPELLEES, v. CITY OF SOUTH OMAHA, APPELLANT
• Court: Nebraska Supreme Court

96 N.W. 248

69 Neb. 577

GEORGIA A. TREPHAGEN ET AL., APPELLEES, v. CITY OF SOUTH OMAHA, APPELLANT

No. 12,988

Supreme Court of Nebraska

July 3, 1903

APPEAL from the district court for Douglas county: CHARLES T DICKINSON, DISTRICT JUDGE. Affirmed.

AFFIRMED.

A. H Murdock, for appellant.

Henry W. Pennock, contra.

BARNES C. ALBERT and GLANVILLE, CC., concur.

OPINION

BARNES, C.

Georgia A. Trephagen, H. L. Wilton, Mike Higgins and Kornelia Adamowiez, appellees, commenced this action in the district court for Douglas county, to restrain the treasurer of the city of South Omaha from collecting certain special taxes or assessments levied against and upon certain lots belonging to them, situated in said city; to cancel the said special taxes and remove the cloud, created by the assessment and levy thereof, on their title to said lots. The petition alleged, in substance:

That the city had pretended to assess certain special taxes against their specific property for paving, curbing and guttering that part of "L" street from the west end of the viaduct to the west line of 33d street, situated in paving district No. 6 of said city; that prior to the attempted passage and approval of the ordinance ordering said paving, there had never been filed with the clerk of said city, or presented to the city council, a petition signed by the property owners representing a majority of the front feet or area within the limits of said paving district, as defined in said ordinance; that a paper called a petition was filed with the said clerk requesting that the street be paved with Colorado sandstone on six inches of sand; that the said paper was not a petition, but was a mere selection of materials, and was not signed by the owners of a majority of either the front feet or area of the real estate within said district; that there appears upon said paper the name of Joseph Schlitz Brewing Company, Ed. Ainscow and R. D. Mattice, but neither of said parties owned any real estate within said district at the date thereof, nor at the time defendant passed the ordinance ordering the said street to be paved; that there also appears upon said paper the name of the Union Stock Yards Company, by W. N. Babcock, G. M.; and it was alleged in the petition that said Babcock had no authority to sign the name of the Union Stock Yards Company, and the same was placed upon said paper without the authority of the said corporation, and should not be considered as a lawful signature; that no other paper purporting to be signed by property owners in said district was ever filed with the clerk, or with the city council in connection with the paving or curbing of said street, and no other proceedings were had than those mentioned in the petition, in connection with the paving of said street, and the assessment of the cost thereof on the adjacent and abutting property; that the city council failed to sit as a board of equalization, and failed to assess benefits to the property of the plaintiffs, and failed to make any finding of any character respecting said assessment, and failed to give notice of said proposed equalization by publication for six days prior to said 7th day of January, 1892, in any daily paper of said city; that by the terms of a certain special ordinance, No. 32, large amounts of special taxes were levied upon the real estate of the appellees to pay the costs of said paving and curbing, and the said ordinance was duly certified by the city clerk to the city treasurer, and was by him entered upon the tax lists and became and is an apparent charge and lien upon the plaintiffs' real estate, but the said assessments were null and void for the reasons above set forth.

For their second cause of action, appellees alleged:

That the city attempted to pass a special ordinance numbered 134 by the terms of which lot 7, block 357, was charged and assessed with the sum of $ 35.53 for the costs of the construction of an alleged sidewalk in front of said property; that, prior to the passage of said ordinance, no notice had been given to the owners of said property, and no notice had been published of said proposed assessment; that the owners had never been required to construct the sidewalk or notified that a sidewalk had been ordered, and had never been given any opportunity to construct the same, and that all of the proceedings of said city council with reference thereto were null and void.

For their third cause of action the appellees alleged:

That the city attempted to pass, and, thereafter, there was approved by the mayor of said city, a special ordinance, No. 87, by the terms of which lot 7, block 357, was charged and assessed with the sum of $ 19.64, as an alleged garbage assessment, for removing garbage from said property; that said property was not subject to an assessment for removing garbage; that there was and is no authority of law for assessing specific real estate in said city for the removal of garbage, and all of the acts of the city council in attempting to levy and in levying an assessment therefor were and are null and void. The petition concluded with a suitable prayer for relief.

The appellant, by its answer, denied each and every allegation contained in the petition, except those expressly admitted; set up a plea of the statute of limitations; and, for a third defense, contained matters supposed to create an equitable estoppel. The reply was a general denial. The cause was duly tried, and the court found generally in favor of the appellees and rendered a decree canceling the alleged special taxes, restraining the collection thereof and removing the apparent cloud from the title to the lots described in the petition. From this decree the city appealed, and now contends that the court erred in its findings and judgment as to each of the several causes of action set forth in the petition, and that the evidence is not sufficient to sustain the decree.

The rule is, that in order to confer jurisdiction upon a city council to order paving and curbing, and authorize the assessment of the cost thereof against the abutting real estate, a petition therefor must be presented, signed by the owners of a majority of the feet frontage upon the street to be thus improved; and this rule is so well settled in this state that it is unnecessary to cite authorities in support of it. In fact, the appellant concedes this to be the...