Wead v. City of Omaha
| Decision Date | 22 February 1905 |
| Docket Number | 13,679 |
| Citation | 102 N.W. 675,73 Neb. 321 |
| Parties | FRED D. WEAD ET AL., APPELLEES, v. CITY OF OMAHA ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: GEORGE A. DAY JUDGE. Reversed.
REVERSED.
C. C Wright, W. H. Herdman and A. G. Ellick, for appellants.
H. W Pennock and Charles A. Goss, contra.
LETTON, C. AMES and OLDHAM, CC., concur.
This action was brought by Fred E. Wead and others, as plaintiffs, against the city of Omaha to enjoin the collection of certain assessments for paving levied in paving and improvement districts 168, 225 and 542 against the property described in the petition. The district court found in favor of the plaintiffs and entered a decree accordingly. The city of Omaha complains of said decree only so far as it affects the assessments levied in district 542, and prosecutes this appeal to reverse the action of the trial court so far as it adjudges the assessment levied in that district to be void. A number of irregularities are set forth in the petition of the plaintiff with reference to the creation of said district and the levy of the special assessment therein, but since the district court found for the appellant as to such matters and there is no cross-appeal here, they will not be considered. The ground upon which the district court found for the appellee was "that the assessment which was levied upon the plaintiff's property to pay for the cost of paving and curbing in improvement district 542 was inequitable and grossly unjust; that the assessment levied upon the greater portion of the property described in the petition was practically the full value thereof after the improvement had been made; that as to the balance it was grossly excessive and unjust." The evidence in the case supports the finding of the district court that the assessment was inequitable and grossly unjust, and that it was practically the full value of the property after the improvements had been made. The appellant city contends that this is a collateral proceeding; that there is neither allegation nor proof in the record that the assessments were fraudulently or corruptly made, and that since the board of equalization had jurisdiction to determine the benefits its finding is final and conclusive in a collateral attack.
We have repeatedly held that an equalization board when properly in session, with due notice given, acts judically and its action within its jurisdiction is not open to collateral attack. Webster v. Lincoln, 50 Neb. 1, 69 N.W. 394; Morse v. City of Omaha, 67 Neb. 426, 93 N.W. 734; Portsmouth Savings Bank v. City of Omaha, 67 Neb. 50, 93 N.W. 231. We are satisfied with the rule thus laid down. It is the policy of the law to allow every person whose property may be affected by the findings of a board of equalization an opportunity for a hearing before said board. He may present his objections to their proposed action and his views as to whether or not special benefits will be conferred upon his property by the proposed improvement or as to the amount of such special benefit, and from the decision of such board he may prosecute error to the district court. Section 161 of the city charter (ch. 12a, Comp. St. 1901), in force at the time the taxes in question were levied, after providing that special taxes shall be levied to the extent of the benefits on abutting or adjacent lots and lands and that the assessment may be according to foot frontage if the board of equalization finds such benefits to be equal and uniform, provides that "all such assessments and findings of benefits shall not be subject to review in any legal or equitable action, except for fraud, gross injustice or mistake." Under these provisions of the statute, unless the assessment and finding of benefits was fraudulently made, was grossly unjust or was made by mistake, the action of the board within its jurisdiction is final. We think that without the insertion of this clause in the law the finding of a board of equalization made within its jurisdiction would no more be subject to attack collaterally than the judgment of any other inferior tribunal. This clause has in fact enlarged the field within which the decision of a board of equalization is vulnerable to attack. It includes "gross injustice" as a ground for review, while without this clause the "injustice" of the finding could not be attacked collaterally. In Morse v. City of Omaha, supra, it is said in the opinion, citing the clause under consideration:
Taking this language in connection with the facts in the case in which it was used, we have no fault to find with it. But we think that, in so far as it may imply, if it does so imply, that error is the only remedy for fraud, gross injustice or mistake in the findings made by the board of equalization, the statement is too broad as a general proposition.
It is urged by the appellant that the provisions of section 164 of the city charter, a part of which section provides, "No court shall entertain any complaint that the party was authorized to make, and did not make to the city council sitting as a board of equalization, nor any complaint not specified in said notice, fully enough to advise the city of the exact nature thereof; nor any complaint that does not go to the ground work, equity and justice of the tax," prevent any person from maintaining any action complaining of the gross injustice of a special tax unless he had first made complaint to the board of equalization. We think this position is untenable. If the party injured, before he could be heard upon the question of whether a gross injustice had been done to him by the action of the board, would be compelled to present his complaint to that body, so also under these provisions, where the board had acted fraudulently, or where it had acted by mistake, the person injured would be debarred of any remedy unless he had first presented his complaint to that body. This, however, would be giving to an inferior tribunal an immunity from attack upon the ground of fraud which is not vouchsafed to a court of general jurisdiction. A judgment of a court may be impeached upon the ground that it was obtained by fraud, even though the rule exists that judgments are not subject to collateral attack. Further than this, if the only method of review of a decision of the board of equalization permitted by the law is by error proceedings, then of what meaning is the phrase which provides that it shall not be "subject to review in any legal or equitable action except for fraud," etc.? A proceeding in error is not an equitable action, and therefore the phrase "equitable action" would be meaningless. Construing these clauses of the two sections together, we are satisfied that the "gross injustice" which will permit an equitable action to be brought, which reviews the proceedings of the board of equalization, must be so flagrant and excessive in its nature as to substantially deprive a citizen of his property without due process of law, and that it is only in such an exceptional case that an independent action will lie. It may be regarded as settled law in this state that in so far as it is sought to take from the owner of private property the cost of a public improvement in excess of the special benefit which his property received by such improvement, this is, to the extent of such excess, the taking of private property for public use without compensation. Morse v. City of Omaha, supra; Norwood v. Baker, 172 U.S. 269, 43 L.Ed. 443, 19 S.Ct. 187. In the instant case the evidence shows that the amount assessed against the respective pieces of property is largely in excess of the special benefits received. In fact, the testimony shows that the benefits to the property have been little or nothing, while the assessments have amounted to about $ 110 a 45-foot lot, in most instances being more than the lots are worth. This is...
To continue reading
Request your trial