McCaffrey v. City of Omaha

Sedgwick, J. In August, 1907, the mayor and council of the city of Omaha passed an ordinance “creating improvement dis-. triet No. 961 in the city of Omaha for the improvement of that part of Jackson street from 28th street to the west line Of 80th street in said city, by curbing and paving, and fixing and defining the boundaries of said district and ordering the improvement of the same.” The ordinance fixes the boundaries of the district, names the lots and blocks included therein, and directs the city clerk to advertise for and receive bids upon material of different kinds. Afterwards, an ordinance was passed reciting that the record owners of lots in the improvement district “have failed to designate the material for said pavement” and providing that the material used shall be “Purington. vitrified brick block for paving and Indiana stone for curbing.” Afterwards an ordinance was passed entitled “An ordinance levying a special tax. and assessment on all lots and real estate within street improvement district No. 961 in the city of Omaha, to cover the cost of paving and curbing Jackson street from 28th- street to 30th street.” By this ordinance taxes were levied against lots not included in the improvement district. The owners of such lots objected to the assessment of such taxes and afterwards appealed to the district court. The district court sustained the action of the city council, and the property owners have appealed to this court. The counsel for the city insist that the mayor and council can levy taxes to pay for the improvement upon any and all property benefited thereby, whether the same is within or without the improvement district. Section 107, ch. 12», Comp. St. 1911, provides that the mayor and city council shall have authority to create street improvement districts for the purpose of improving all streets, alleys, or other public grounds therein by paving, etc., and section 106 provides that in the same ordinance that creates improvement districts for paving, etc., the mayor and council — 186 — shall “direct the city clerk to advertise for and receive bids upon” different kinds of material. Section 107 jirovides that the mayor and council may order the improvement by ordinance and cause it to be made when it is embraced in any district, the outer boundaries of which shall not exceed a distance of 4,500 feet from any of the streets surrounding the city hall ground. If the improvement is in a district “outside of said 4,500 feet limit” it can be ordered “only upon petition of the record owners of a majority of the frontage of taxable, property in such district.” This improvement district was outside of the specified limit. The principal purpose of creating an improvement district is to determine what property is liable to assessment if specially benefited, and to give to the owners of property liable to be assessed for the improvement “a voice in the determination of how, when and where the. improvement shall be made.” The formation of the improvement district is the foundation for all subsequent proceedings. This district so formed composes the territory to be affected by the improvement, which it is supposed will be benefited thereby. Property owners within the district must take notice that their property will be affected, and that -they may be called upon to pay the expenses of the improvement. The second subdivision of section 108 of the act requires the mayor and council “to give the property owners within any district” opportunity to designate the materials to be Aised. The district so formed must be given a definite corporate name for the purpose of paying for the improvement. Section 198. The formation of the district is also important because all of the property owners Avithin the district, as above stated, are entitled to participate in designating the materials to be used. “Property owners whose property Avill be charged by the establishment of a paving district arc entitled to insist that the soA'eral petitioners therefor sign in such a way as to be fully and legally bound, * '* * the whole tendency of recent legislation in this state has been to — 187 — give those who are to be assessed with the cost of paving a voice in the determination of how, when and where the improvement shall be made.” Batty v. City of Hastings, 63 Neb., 26. In Morse v. City of Omaha, 67 Neb. 426, this court quoted with approval the following statement of the supreme court of the United States, in Ogden City v. Armstrong, 168 U. S. 224: “No jurisdiction vested in the city council to make an assessment or to levy a tax for such an improvement, until and unless the assent of the requisite proportion of the owners of the property to he affected had been obtained,” and in the same case this court quoted from Sharp v. Speir, 4 Hill (N. Y.) 76, in which it was held that it was not competent- for the city authorities to decide “that a majority of the persons intended to be benefited liad signed” the petition for the formation of the district, unless such was the fact, and that that question could be subsequently investigated by the courts. It also quoted from the supreme court of Michigan in Auditor General v. Fisher, 47 N. W. 574 (84 Mich. 128), to the effect that whether a majority of the property holders had signed the petition could be determined in collateral proceedings. In Wiese v. City of South Omaha, 85 Neb. 844, this court, as the basis of its decision, quoted with approval from Welty, Law of Assessments, see. 297: “An important principle of laAV in this connection is that the district which is to be taxed with an assessment to pay for a local improvement must be accurately defined.” In the syllabus the law is stated to be: “It is the duty of a city, when creating an improvement district for a local improArement, to define the limits thereof with sufficient certainty to identify the lots or lands sought to be included therein, and to publish a statement of such limits.” The discussion in the opinion is upon the theory that the property to be assessed must be included in the improAWment district. In Shannon v. City of Omaha, 73 Neb. 514, it.is said in the first paragraph of the syllabus: “All.of the property in a sewer district- which is benefited by the improvement should bear its fair proportion of the neees — 188 — sary expense,” and in the opinion, “Such expense should be borne by the property in that district especially benefited thereby to the extent and in the proportion of such special benefits.” It was held that when improvements are contemplated in a sewer district the council cannot determine in advance what part of the property in the district will be benefited and form a new district embracing only such property, because by so doing they would exclude property in the old district, and not included in the new, from assessments for the improvement. It is not necessary to cite and review the innumerable decisions of this court that are predicated upon that proposition. Various other sections of the act of 1905, under which these proceedings were had, declaré and imply the importance of the power to form an improvement district for such purposes, find the .statute as a whole is in harmony with our numerous decisions. It has also been held by this court, as stated in Morse v. City of Omaha, 67 Neb. 426: “Statutory provisions authorizing assessments-of special taxes against property benefited by public improvements are to be strictly construed, and it must affirmatively appear that the taxing authorities have taken all steps which the law makes jurisdictional; the failure of the record to show such proceedings will not be aided by presumptions.” Under the contention of the city in this case, the formation of an improvement district has no purpose whatever, no subsequent action of the city authorities or the property owners has any reference to the improvement' district in any manner; and this in the face of the statute which forbids the council to take any other proceeding in the matter until they have created the improvement district. The contention is that, if the improvement district has been formed and the improvement lias been made, the authorities may levy assessments to pay for the improvement without any regard to the improvement district, and upon property beyond its limits. It is not necessary to determine whether the legislature could confer such, here — 189 — tofore unheard of, powers upon the city council. It is sufficient to know that it has not intended or attempted to do so. This question is to be determined by a construction of the statute, and if the various provisions of the statute are construed together there can be no doubt of the legislative intention. Section 198 of the act provides that for the purpose of paying for the the improvement the mayor and council may issue bonds of the city to be called “ ‘District Street Improvement Bonds’ of District No. —,” and. may provide that the “special taxes and assessments levied in said district shall constitute a sinking fund for the payment of said bonds and interest.” Here is direct and plain legislation that when bonds are issued property outside of the district cannot be assessed for the improvements. And, again, section 186 provides that in cases of mistakes, irregularities, etc., in the proceedings the mayor and council may correct the proceedings and levy (if no levy had been made) or relevy (if a former levy had proved invalid) “a special assessment on any or all property in said district” — an express provision that no re-levy can be made on property outside of the district. Did the legislature intend that, while no property outside of the district can be taxed to pay for the improvements when bonds are issued, still when no bonds are issued property outside of the district may be assessed for the same improvement, and that the first levy can be made on property outside of the district; and if that levy is set aside for irregularities the relevy can only be made 'on property inside the district? It is not .necessary to inquire whether the legislature, if it desired, could so trifle with the interests of the taxpayers, because it is manifest that it has neither intended nor attempted to do so, Section 107 provides that “the mayor and city council shall have power to levy special taxes or assessments on account of said improvements on any or all property benefited thereby according to the special benefits received by said property from said improvement.” This follows the provision authorizing the mayor and council “to — 190 — create street improvement districts for the purpose of improving all streets,” and the general language used in regard to the special assessments clearly applies to 'property within the district, which by the preceding clause is created for that very purpose. No taxes for such purpose can be levied upon property in excess of benefits to that property. Without such limitation the statute would be unconstitutional, and the purpose of this clause is to .restrict the amount of the levy to the special benefits received by the property taxed. It was unnecessary to repeat in the second clause of the section what was so plainly said in the first, that the district was created for the purpose of improving the streets, which necessarily included the formal proceedings and providing the means for such improvement. That clause of the second subdivision of section 108 of the act, which provides that before improvements are ordered in any district there must be a petition of the “record owners of a majority of the taxable foot frontage of property upon such street or alley to be improved within said district,” is cited. We are asked to construe this clause of the statute as. though it read: “Record owners of a majority of the frontage of lots or tracts abutting upon the improvement.” It would give no meaning whatever to the words, “taxable foot frontage of property upon such street or alley to be improved within -said district.” It is not the object of this clause of the statute to limit the territory that shall be embraced in the improvement district, nor to change the law as to the purposes for which an improvement district may be formed. The object is to afford a method of determining when the proper number of property owners within the district have signed the petition. Section 177 of the act provides: “All special assessments to cover the cost of any public improvements herein authorized shall be levied and assessed on all lots, parts of lots, lands and real estate specially benefited (by) such iinprovement, or (and) within the district created for the purpose of mailing such improvement.” It is con — 191 — tended that this means that property can be assessed if either of two things exist; that is, if it is specially benefited, or if it is within the improvement district, but such construction would make the section unconstitutional. No property can be assessed unless it is specially benefited. Therefore this language cannot be given such an extended meaning. It is the duty of the court to construe the act of the legislature so as to uphold it rather than to give such meaning to the words as to render the act unconstitutional. When this section is construed together with the remainder of the act, it is manifest that the legislature intended that property within the district specially benefited should be assessed-for the improvement. Sections 18G and 198, above quoted, plainly show that it was the purpose and meaning of the legislature to provide for the creation of an improvement district which should include all property to be assessed, and that the owners of all property to be assessed for the improvement shall have a “voice in the determination of how, when and where the improvement shall be made,” as is said in Batty v. City of Hastings, supra, and substantially also in many other decisions. It is suggested that the mayor and council might, by a. subsequent ordinance, create a “taxing district” which would include property benefited but not included in the improvement district required by statute. In all the different states it is required when work of this kind is to be done that a district shall be formed. This, district is sometimes called a paving district, a sewer district, a taxing district, and assessment district, or an improvement district. The latter is a general word and covers all of the purposes for which the district is formed. It makes no difference which one of these several names is given to the district. Our statute requires that the district be formed the first thing that the council does, and calls it the improvement district, and says that it is for the purpose of “improving all streets * * * by paving,” etc. In the index to Page and Jones on Taxation by Assess192 meat we find the title “Improvement District,” and a reference to section 249 for a discussion of the power of an improvement district. Section 249 refers to the district that the law requires to be formed several times, and in this same section it names it “a special assessment district” and “an assessment district” and “the improvement district” and again “an assessment district.” These authors used the names interchangeably. The same authors, say in section 874: “The power of fixing an assessment district is frequently conferred by statute upon the council of the public corporation, by which the improvement is to be constructed, or some body corresponding thereto. Under such statutes the assessment' district must be fixed by ordinance. * * * A general description of the property embraced in an assessment district is sufficient. It has been said that any description which would be sufficiently certain in a conveyance is sufficiently certain as a description of an assessment district.” And in section 883: “If the statute requires the resolution to specify the exterior boundaries of the district benefited, an ordinance which describes the exterior boundaries as The land fronting upon a given described street between two specified cross-streets’ is insufficient, as it does not show the depth of the improvement district from such street. Whether the resolution which fixes the boundaries of the assessment district is in compliance with statute is a state question, and not a federal question.” In Whitney v. Common Council of Village of Hudson, 37 N. W. 184 (69 Mich. 189), the supreme court of Michigan states the law to be: “Under a village charter (Sess. Laws Mich. 1867, Act No. 266, sec. 38) providing that the council may levy a tax for paving streets upon such premises as in their opinion are benefited thereby, a resolution of the council to pave part of a street, declaring that The real estate abutting or adjoining said street * * * shall constitute the taxation district for such purpose’ is illegal, as not specifying a definite taxing district.” And in Boehme v. City of Monroe, 106 Mich. 401, the court ad — 193 — liered to this decision, and in the first paragraph of the syllabus shows that it is necessary that the resolution to pave a street shall designate the paving district. Can such a district be formed by mere implication by simply levying a tax upon a certain lot or lots? Our statute requires the council to form an improvement district, as before stated, but it nowhere requires or authorizes them to form another district. The term “taxing district” is not named in the statute. Section 1.75' provides that the council shall sit as a board of equalization, and that as such board it shall “hear and determine all complaints, and shall equalize and correct such assessment” (that is, the assessment that has been reported by the proper authorities). That is all that the hoard of equalization can do, and then, after all corrections have been made, the council, not as a board of equalization, but “at a regular meeting thereafter,” can levy such special assessments; that is, such special assessments as have been equalized by the board of equalization. This is all that the council can do, and it is impossible to find in these provisions any authority for forming any taxing district, and it would seem to be an idle thing to do, after the district which the law requires has been already formed in the commencement of the proceedings. The improvement district is the foundation of all other proceedings, and the improArement is to be paid for by issuing bonds, styled “ImproArement district bonds,” giving the number of the district, and by levying a tax upon the property in said district to pay the bonds. If the first assessment is set aside for irregularities a new assessment may be made upon the property in the district. The judgment of the district court is reversed and the cause remanded for further proceedings. Reversed. Reese, C. J., toot no part in the decision.