Cook v. Gage County

Sedgwick, J. This action was brought by the plaintiff, appellee, to have certain special paving and curbing taxes assessed against his property in the city of Beatrice declared void, and to cancel the same. Upon trial in the district court a decree was rendered canceling the taxes as prayed. Numerous objections are urged against the validity of the taxes. The first, and to our minds the sufficient and controlling one, is that no sufficient notice was given of the meeting of the city council at which the assessment was equalized and levied. Subdivision 7 of section 52 of article 2 of chapter 14 of the Compiled Statutes of 1899, under which these proceedings were taken, provides: “Such assessment shall be made by the council at a special meeting, by a resolution fixing the valuation of such lots assessed, taking into account the benefits derived or injuries sustained in consequence of such contemplated improvements, and the [612] amount charged against the same, which, with the vote thereon by yeas and nays, shall be spread at length upon the minutes. Notice of the time of holding such meeting and the purpose for which it is to be held shall be published in some newspaper published or of general circulation in said city, at least four weeks before the same shall be held, or in lieu thereof personal service may be had upon persons owning or occupying property to be assessed.” It is conclusively shown by the evidence that the notice of the sitting of the council to levy the taxes was published in the Daily Express, and in but two issues of that paper, — on September 11 and again on September 30, 1889, — and the meeting of the council at which the levy was made and the assessment equalized was held on the 3d day of October, 1889; so that the provisions of the statute providing at least four weeks notice before the same shall be held was not complied with. There was no attempt to make personal service upon the parties interested. This notice is jurisdictional, and the action of the city council without giving the prescribed notice was erroneous, and the decree of,the district court is therefore Affirmed.