State ex rel. Funke v. Lancaster County

Per Curiam. In this, an original action in this court, the relator, the owner of land in improvement district No. 38, in Lancaster county, Nebraska, on behalf of himself and others similarly situated, brings this action against Lancaster county and the county commissioners of said county, praying for a writ of mandamus to compel the county commissioners of said county to give notice, as provided by law, and thereupon to reconvene as a board of equalization and relevy special assessments on all of the property in said district, in accordance, with the net special benefits to such property, and to allow damages to any such property by reason of the improvement made, as provided by law. To the petition the respondents have interposed a general demurrer. The issue for determination is the sufficiency of the averments of the petition to entitle relator to the relief' sought. Besides the necessary formal allegations, relator alleges that the county board did not,'' iñ' the resolution creating the district designate and fix the proportion of — 636 — the total cost, of such work and improvement that would be paid out of the county paving fund, as required by statute, but arbitrarily fixed the amount which should be paid out of the county paving fund at $10,000 per mile, but which should not exceed one-half the total cost per mile; and that the board of equalization thereafter levied assessments upon the property within the district for the total cost of said improvement, less $10,000 per mile, without any reference to proportional benefits and proportional expenditures as between the county and property owners within the district, and without reference to the excess of such cost over the estimate fixed by the county surveyor; that said estimates of the total cost of the improvement ranged from $178,779.23 to $257,970, and that the total cost of the construction was approximately. $300,000; that relator owned 77 acres of land within the district which was assessed for benefits at the sum of $10,175.88, being six times the value of the special benefits accruing from the improvement. . Other irregularities in the proceedings are alleged, but apparently are not relied upon, as they are not discussed in the briefs, and they will not be considered in this opinion. Relator claims that by reason of the irregularities the board of equalization was without jurisdiction to make the assessments for benefits conferred upon the properties within the district by reason of the construction of the improvement. The question presented for determination depends on the proper construction to be placed upon section 2625, Comp. St. 1922. Said section, inter alia, provides: “Such districts shall be created by resolution of the county board, and said board shrill in said resolution designate and fix the proportion of the total cost of such work and improvements which shall be paid out of said county paving fund which proportion shall in each case be not-more than one-half the total cost, and in fixing such proportion of cost said board shall use its discretion and judgment, taking into consideration the whole nature — 637 — and value of the territory of the district and the benefits to be derived thereby from such improvement. To pay the remaining cost of such work and improvements said board shall levy special assessments upon all such lots, tracts and parcels of land, or portions thereof in such district in proportion to benefits from such improvements.” It will not be contended that assessments in excess of special benefits derived from the improvement could be lawfully levied against the property within the district. Relator concedes, and we think it reasonably clear from a consideration of the entire statute, that it is intended that assessments shall not exceed the benefits accruing from the construction of the improvement. Relator contends, however, that the part of section 2625 quoted above requires the county board to take into account, not only special benefits, but also the public benefits to be derived from the improvement, in fixing the proportion of the total cost of construction which shall be paid out of the county paving fund; that the county board erred in fixing an arbitary sum which should be paid out of the paving fund; that, instead, it should have required a certain percentage of the total cost of construction to be paid from the paving fund, and that the board, in fixing the sum of $10,000 a mile, was not following either the spirit or letter of the statute, and its action in that respect worked a grievous wrong to the property owners of the district, in that the balance of the cost of construction over $10,000 a mile was, in fact, assessed against the property within the district. Relator insists that it was the intention of the legislature that the board of county commissioners should consider and determine, at the time of creating the district, the relative benefits to the public at large, on the one hand, and the benefits to the property of the district, on the other, that would accrue from the construction of the improvement, and that it should fix the ratio of one to the other, or fix the percentage of the total cost that — 638 — would be paid from the county paving fund, which would automatically fix the percentage of the cost that the property owners would pay; that the question of fixing this ratio was not open to the board of equalization, and that, if the county board did not have in mind some ratio when it fixed $10,000 a mile as the proportion of cost to be paid from the paving fund, then the proceedings are void, and, if it did have in mind some ratio or percentage of the cost which the county paving fund should pay, then such ratio or percentage must be followed by the board of equalization in making the assessments for benefits to the several tracts and parcels of land in the district; and he assumes that the ratio the county board had in mind was that existing between $10,000 a mile and the estimated cost per mile, and that, since the final total cost is greatly in excess of the estimated cost, such excess of cost over the estimate should be apportioned to the paving fund and the property in the district, in the ratio existing between $10,000 a mile and the estimated cost per mile. Relator contends that he is entitled to the writ; regardless of whether the board of county commissioners had in mind a definite percentage of cost which the paving fund should pay. The argument is ingenious, but not convincing. If, as contended by the relator, the failure of the county commissioners to fix a definite percentage of the cost which should be paid-from the paving fund would render the proceedings void, then it would follow that the board of equalization would not be authorized to malte any assessment for benefits, and no writ could issue to compel it to reconvene and relevy assessments, when it had no authority to make such assessments. Relator’s suggestion, that the county board, in designating $10,000 a mile as the proportion of cost to be paid from the county paving fund, fixed the amount with reference to the estimated cost per mile, is untenable for the reason that the statute requires the proportion, of cost payable from the paving fund to- be fixed in the resolution creating the district, while the estimate-' — 639 — of cost of the improvement cannot be made until a later date. The final solution rests on the meaning of the "word “proportion,” as used in that part of section 2625, above quoted. Among . other definitions of the word “proportion,” given by Webster’s New International Dictionary are the following: “The relation of one .portion to another, or to the whole, or of one thing to another, as respects magnitude, quantity, or degree.” “The portion one receives when a whole is distributed by a rule or principle.” “A share.” Among the definitions given by the Century Dictionary are: “The relation of one part to another or to the whole with respect to magnitude.” “Just or proper share; in general, portion.” In determining the meaning that should be given the word as used, it is proper to consider the situation and conditions under which the county board must act in creating an improvement district. At that time, the board has accurate knowledge of the amount available in the paving fund and may know approximately the amount that can be raised by any levy that has been made for the .fund, but it cannot, at the time the district is created, have even approximate knowledge of the cost of the improvement, for no estimate of cost has then been made and the kind of paving has not been determined, and the power to determine the kind of paving to be used then rests in the property owners, and not in the county board. It is well known that one kind of paving may cost twice as much as another. The county board could not, in the nature of things, if it designated a percentage of the cost payable from the paving fund, know whether there would be sufficient for the purpose, unless it should fix a very small percentage as the share the paving fund should bear. It will not be presumed that the legislature intended to impose on the county commissioners an impossible condition. The board could intelligently act in the premises by fixing a specific sum that the paving fund should contribute to the whole im — 640 — provement, or a specific amount per mile, but could not act in that respect if a percentage of cost was fixed. Reason dictates that the proper meaning to be given the word, as used in the statute, is, “share, part or portion.” That the legislature used the word “proportion” in the sense of “part” is indicated by the following language in the first proviso in said section 2625: “No such work and improvements shall be finally ordered or constructed unless a petition shall be signed by the owners of a majority of the property chargeable with the cost of the improvement or part thereof.” The word “part” has reference to the cost and is used in the same sense that the word “proportion” is used in the earlier part of the section. With this construction adopted, the board of equalization was required, then, to levy the remaining amount of the cost, over and above $10,000 a mile, against the property within the district, but in no event to exceed the benefits conferred by the improvement. Relator has alleged that the amount assessed against his property is six times the benefits derived from the improvement. If he Avas wronged by an assessment in excess of benefits, the statute afforded him an adequate remedy Avhich he should have pursued, but mandamus is not a proper remedy to obtain redress from errors in making assessments for special benefits by a board of equalization, Avhen the statute affords an adequate legal remedy. Comp. St. 1922, sec. 9225; State v. Drexel, 75 Neb. 751. The allegations of the petition are insufficient to justify the issuance of the writ, and - it is accordingly denied. Writ denied.