Barker v. City of Omaha

Maxwell, J. This is an action to enjoin the collection of a special assessment on lot 1, in block 123, in the city of Omaha, which was assessed to pay in part the cost of curbing and guttering Douglas street, from 10th to 16th streets, in said city.' The amount levied upon the lot in question was the sum of $322.74. On the trial of the cause in the court below, the court found that the just and equitable proportion of the tax which should have been assessed against said lot was the sum of $200, and rendered a decree accordingly. The plaintiff appeals. The plaintiff alleges in his petition that he is the owner of the lot in question; that in January 1879, the mayor [270] and council of the city of Omaha levied a special tax upon said lot for the purpose of paying the cost and expense of guttering and curbing Douglas street, from 10th to 16th streets; that said lot abuts on Douglas street; that the-amount of said special tax so levied upon said lot was the sum of $322.74, which sum greatly ¡exceeded five per cent of the value of said lot at the close of the fiscal year in which said levy was made; that within thirty days after said tax was levied the plaintiff complained, verbally and not in writing, of said assessment as excessive, to the proper authorities of said city, and tendered to the city treasurer an amount of money equal to five per cent of the value of said lot at the close of said fiscal year in satisfaction of said tax, which was refused by said treasurer; that the value-of said lot at the close of said fiscal year had not been determined by three disinterested freeholders, etc.; that said lot is not benefited in an amount equal to said tax upon said lot; that said tax was levied illegally and arbitrarily,, and without reference to benefits conferred by the improvement, and without notice to the plaintiff; that the treasurer of Douglas county is now offering said lot for sale for said tax, and is about to sell the same, etc. The answer denies many of the allegations in the petition, and states defenses to which it is unnecessary to refer. The principal ground upon which relief is sought is because the city charter in force when the tax was levied contained no provision for notice to the property owner. There is no doubt that notice of some kind must be given to a property owner, and an opportunity given to him to-be heard before an assessment upon his property becomes-finally and irrevocably fixed. County, etc., v. S. P. R. Co., 18 Fed., 885. County, etc., v. S. P. R. Co., 13 Id., 722. Thomas v. Gain, 35 Mich., 155. Butler v. Supervisors,. 26 Id., 22. Paul v. Detroit, 32 Id., 108. Philadelphia v. Miller, 49 Penn. St., 440. Pattern v. Green, 13 Cal., 325: Gatch v. DesMoines, 18 N. W. R., 310. [271] And that the notice should be provided for in the statute or ordinance authorizing the improvement, there is no doubt. The object of notice, however, is to enable the property owner to protect his rights by the proper proceedings. If he appear in the case the object of notice has been accomplished, nor will he be heard afterwards to complain 'on that ground. But, even where there is neither notice nor appearance, but the circumstances were such that he must have known the facts, if there was authority to impose the tax, a party can not, after the improvement is made, enjoin the collection of the tax assessed to pay for the same —in other words, retain the benefit derived from .the improvement without doing equity by tendering the amount for which the property would be justly liable. La Fayette v. Fowler, 34 Ind., 140. Sleeper v. Bullen, 6 Kas., 300. Evansville v. Pfisterer, 34 Ind., 36. Weber v. San Francisco, 1 Cal., 455. Kellogg v. Ely, 15 O. S., 64. Tash v. Adams, 10 Cush., 252. Motz v. Detroit, 18 Mich., 495. Warren v. Grand Haven, 30 Id., 24. Peoria v. Kidder, 26 Ill., 351. The court, therefore, did not err in requiring the plaintiff to pay an equitable proportion of the tax as a condition of granting relief. Objection is made to the mode of assessment of the lot in question, the tax having been assessed by the front foot, but neither the petition nor proof is sufficiently definite to justify the court in reviewing the judgment in that regard. It is evident that substantial justice has done and the judgment is affirmed. Judgment affirmed. The other judges concur.