Von Steen v. City of Beatrice

• Decision Date: 16 March 1893
• Citation: 36 Neb. 421,54 N.W. 677
• Parties: VON STEEN ET AL. v. CITY OF BEATRICE.
• Court: Nebraska Supreme Court

36 Neb. 421

54 N.W. 677

VON STEEN ET AL.

v.CITY OF BEATRICE.

Supreme Court of Nebraska.

March 16, 1893.

Syllabus by the Court.

1. The act of March 30, 1887, entitled “An act to amend sections 27 and 58, and to add subdivisions 58 and 59 to section 52, article 2, chapter 14, Compiled Statutes, relating to cities of the second class having over 5,000 inhabitants,” is a complete act, covering the entire subject of the power of the class of cities designated with respect to the opening and improving of streets and alleys, and, by implication, repeals all prior acts in conflict therewith.

2. The provision of subdivision 4, § 52, art. 2, c. 14, Comp. St., for the paving of streets in cities of the second class having over 5,000 and less than 25,000 inhabitants, without petition of the owners of property to be charged therefor, is in conflict with the provisions of the act of March 30, 1887, and is repealed thereby.

3. The property of the state, counties, or school districts is not liable for special assessments for paving or otherwise improving the streets of cities of the second class having over 5,000 and less than 25,000 inhabitants.

4. A petition to confer jurisdiction upon the city council to order the paving of streets in any paving district of cities having over 5,000 and less than 25,000 inhabitants must be signed unconditionally by the owners of the majority of the feet fronting therein.

Appeal from district court, Gage county; Babcock, Judge.

Action by John H. von Steen and another against the city of Beatrice to enjoin defendant from concluding a contract for street improvements. There was judgment granting perpetual injunction, and defendant appeals. Affirmed.W. C. Le Hane, Griggs, Rinaker & Bibb, and L. M. Pemberton, for appellant.

E. O. Kretsinger and E. R. Fogg, for appellees.

POST, J.

This is an appeal from a decree of the district court of Gage county, enjoining the defendant, the city of Beatrice, from concluding a contract for the grading, paving, and guttering of the streets in paving districts Nos. 9 and 10 in said city. The pleadings are too voluminous to be set out in this opinion, but the contentions of the parties will be understood from the following statements: Ordinances were passed by the city council creating the aforesaid districts, pursuant to petitions of property owners therein, and bonds voted to defray the cost of paving intersections of the streets, and the parts thereof opposite alleys, and the city was about to let contracts for such improvements when restrained by an order of the district court. It is claimed by the plaintiffs that said ordinances are void, and insufficient to authorize the paving of the streets in either district, for the reason that the petitions therefor were not signed by the requisite number of property owners in said districts, or either of them, to confer upon the city council jurisdiction to act in the premises. It is argued, however, by council for the city, that no petition is necessary in order to give the city council jurisdiction in cases where three fourths of all the members thereof shall vote in favor of an ordinance for the paving or otherwise improving of the streets of the city. It is admitted that Beatrice is a city of the second class, of over 5,000 inhabitants, and governed by the provisions of article 2, c. 14, Comp. St. The provision thereof upon which the contention of the city is based is subdivision 4 of section 52, as follows: “In addition to the powers heretofore granted cities under the provisions of this chapter, each city may enact ordinances or by-laws for the following purposes: To construct sidewalks, sewers, and drains; 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 expense of such improvement. But, unless a majority of the resident owners of the property subject to assessment for such improvement petition the council to make the same, such improvement shall not be made until three fourths of all the members of such council shall, by vote, assent to the making of the same.” Article 2 was first enacted in 1883, and entitled “An act to provide for the organization, government, and powers of cities of the second class having more than ten thousand inhabitants.” Laws 1883, p. 130. By an act approved March 5, 1885, the title of said act was amended so as to include within its provisions cities of the second class of over 5,000 inhabitants. March 30, 1887, an act was approved, entitled “An act to amend sections 27 and 58, and to add subdivisions 58 and 59 to section 52, article 2, of chapter 14, Compiled Statutes, relating to cities of the second class having over 5,000 inhabitants, and to repeal said original sections 27 and 58, and all acts and parts of acts in conflict with this act.” Section 2 of the act last named provides “that section 52 of article 2 of chapter 14 of the Compiled Statutes * * * be amended by adding thereto the following subdivisions, 58 and 59.” By subdivision 58 it is provided that “the city council shall have power to open, extend, widen, narrow, grade, gutter, or pave, or otherwise improve and keep in good repair, or cause the same to be done, in any manner they may deem proper, any street, avenue, or alley within the limits of the city. * * * The mayor and city council of such city shall have power and authority to levy and collect special taxes and assessments upon the lots and pieces of ground adjacent to or abutting upon the street, avenue, alley, or sidewalk thus in whole or in part opened, widened, curbed, guttered, graded, parked, extended, constructed, or otherwise improved or repaired, or which may be specifically benefited by any of said improvements.” The foregoing is followed by 17 provisos, covering 16 pages of the Session Laws, from which it appears that the legislature had in contemplation all kinds of improvements to the streets of the city, as well as the manner of making assessments to defray the cost thereof, and intended the provisions therein to be exclusive. In fact, so far as it relates to the power of the city with respect to streets, alleys, and parks, the act of 1887 covers the entire subject, and must be regarded as the charter of the city, and, by implication, repeals all prior acts in conflict therewith. State v. Benton, (Neb.) 51 N. W. Rep. 140. The fifth proviso of the act under consideration is as follows: “Provided, further, that curbing and guttering shall not be ordered or required to be laid on any street, avenue, or alley not ordered to be paved, except on the petition of a majority of the owners of the property abutting along the line of that portion of the street, avenue, or alley to be curbed and guttered. The mayor and council of any city governed by this act shall have power to pave, repave, or macadam any street or alley or part thereof in any 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 superintendence 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 feet front thereon shall petition the council to pave, repave, or macadam such streets or alleys, it shall be the duty of the mayor and council to pave, repave, or macadam the same; and, in all cases of paving, repaving, and macadamizing, there shall be used such material as such majority of owners shall...