Brown Real Estate Co. v. Lancaster County

188 N.W. 247, 108 Neb. 514, 1922 Neb. LEXIS 293

• Court: Nebraska Supreme Court
• Decided: May 6, 1922
• Docket: No. 22212
• Status: Published

Opinions

Day, J.

This action was brought by several parties plaintiff, who were similarly situated, against the county of Lancaster, to cancel and set aside a certain special assessment levied upon their respective properties, lying and being within paving district No. 38 of Lancaster county, also to recover the amount of the first instalment of said assessment paid by the respective parties under protest, and to quiet the title of said respective parties in their lands as against the record lien of said special’assessment. The petition was based upon the theory that the board of county commissioners had no authority or jurisdiction to order the improvement made, and were consequently without power when sitting as a board of equalization to levy an assessment upon the property within the district to pay for the same. The trial court sustained a demurrer to the petition, and entered judgment dismissing the action. Plaintiffs appeal.

The main question raised by the demurrer goes to the sufficiency of the petition to state a cause of action. The petition is too voluminous to be set out in an opinion, but we think the contentions of the parties will be understood from the following discussion:

It appears that on May 19, 1919, the board of commissioners of the county of Lancaster, hereinafter referred to as the board, acting under the provisions of chapter 152, Laws 1917, duly passed a resolution creating and establishing paving district No. 38. The resolution specifically described the roads to be paved, the territory to be embraced within the district, and recited that the county would aid in the improvement out of the county paving fund to the extent of $10,000 a mile, and that the balance of the cost, less any state or federal aid which might be extended, should be assessed against the property within the district in proportion to the benefits derived from the improvement. The paving within the district embraced approximately 3,000 acres, of which about 900 acres were owned by the state of Nebraska, and comprised the grounds upon which the hospital for the insane and the state penitentiary are located. The paving district in question lies immediately adjacent to the city of Lincoln, and the roads included within the improvement are so situated with reference to each other and with certain paved streets of the city of Lincoln as to form a “loop” passing the two state institutions above named. From this loop the- paving extended a distance of half a mile further into the country along what is denominated Fourteenth street. In a general way the improvement may be described as follows:

Commencing at a point on the boundary of the city limits where Park boulevard intersects South street, the paving extends in a southwesterly direction along Park boulevard for a distance of approximately three-fourths of a mile to Yan Dorn street, thence west on Yan Dorn street one-half of a mile, thence south one mile, passing the State Hospital grounds, thence east one and one-half miles, passing the State Penitentiary, to the highway known as “Fourteenth street,” from which point the improvement extends south one-half of a mile, passing the State Penitentiary, and also north about one and one-half miles, connecting at the city limits with city paving.

Following the creation of the paving district certain property owners therein filed petitions with the board requesting that the roads designated in the resolution be paved. Among the petitions so filed was one representing the 900 acres owned by the state of Nebraska, which was signed, “Board of Commissioners of State Institutions, by Henry Gerdes, Chairman.” Thereafter the board referred the petitions to the county surveyor to ascertain and determine the aggregate frontage of the roads designated for improvement, and the aggregate frontage of property the owners of which had petitioned the county board to proceed with said paving, and determine whether the necessary frontage chargeable with the cost of the proposed improvement had signed the necessary petitions. The surveyor reported that the frontage represented by petitioners for the paving was more than 50 per cent, of the total frontage chargeable with the cost of the proposed improvement, and the board, relying on the report, found accordingly, and thereupon ordered the roads designated for improvement to be paved. While the finding of the board was not, strictly speaking, a finding that the owners of a majority of the property within the district chargeable with the cost of the improvement had signed petitions requesting the work to be done, Ave will so treat it, as it was conceded upon the argument that, if the petition representing the state’s lands be excluded, the owners of a majority of the property within the district had not petitioned for the improvement.

On behalf of the plaintiffs it is urged that the petition signed, “Board of Commissioners of State Institutions, by Henry Gerdes, Chairman,” should not have been counted as favoring the improvement, for the reason that there is no authority in the law for the state to sign such a petition, and, assuming that there be such authority, that it was not properly exercised. On the other hand, the de- ■ fendant contends that such authority has been given, and that it was properly exercised. ' Both sides rely upon chapter 215, Laws 1919, to support their respective contentions. Section 1 of the act reads as follows:

“Wherever any paving district is created along or ad-, jacent to any state institution or the state fair ground, the officers having in charge state institutions, or the fairgrounds, are hereby authorized and empowered to sign petitions in the name of the state, to create paving districts.”

Section 3 of the act is as follows: “That for the purpose of paying the state’s share of the cost of such paving-in paving districts which have been or shall hereafter be fully organized, * " '* there is hereby appropriated from the general fund in the treasury, the sum of $100,000.”

We are called upon to determine whether the provisions of the act above quoted are broad enough to authorize the officers named to sign- a petition on behalf of the state requesting the county board to proceed' with the improvement. In the interpretation of statutes the cardinal rule to be observed is the ascertainment of the legislative will, and the courts in seeking the intent of the lawgivers will consider the object which the legislature sought to obtain, the language used, as well as other laws in pari materia, and will, if possible, harmonize all of the law upon a given subject and give meaning to every part thereof.

The law in reference to the general subject of paving in this state has now become fairly well settled. The first step in the process is the creation or establishment of a paving district. As applied to the situation now-before us, this is done by a resolution of the board of county commissioners, defining the territory embraced within the district, designating the roads to be improved, and containing other information for the benefit of property owners, such as the amount of aid which will be extended by the county. The power of the board to create a paving district is in no wise dependent upon a petition of the property owners, although it is not infrequent that the action of the board is prompted by the solicitation of property owners. The second step is a petition of the owners of a majority of the property in the district, computed on the zone basis, which is chargeable with the cost of the improvement, requesting the board to proceed with the improvement.

Section 1, ch. 152, Laws 1917, after authorizing the board, in counties having a city of the first class, “to grade and pave, repave, gravel, or macadamize any road, highway or boulevard in said county outside the corporate limits of such, city and other cities and villages,” further authorizes such board to create suitable road improvement districts comprising lots, tracts, or parcels of land abutting on, or adjacent to, or in the vicinity of, such road, highway or boulevard, which are specially benefited by such improvement. The section further provides that the paving districts shall be created by resolution, which shall designate and fix the proportion of the total cost of the improvement Avhich shall be paid out of the county paving fund, and that the remaining cost of the improvement shall be paid by a special assessment upon the lands in such district in proportion to the benefits from such improvement. The section then recites:

“Provided, however, 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 Avith the cost of the improvement or part thereof, such majority to be computed on the following basis: The district shall be divided into six equal zones on each side of the road, highway or boulevard to be paved and improA'ed, the same to run parallel with said road, highway or bouleA'ard, and all property in the first zones directly abutting on said road, highway or boulevard, shall be computed on the basis of fifty per cent, of the total area space in said district, and all property in the second zones twenty-five per cent., in the third zones ten per cent., and the fourth, fifth and sixth zones five per cent, each, which petition shall be filed with said board. * * * Upon the filing of such petition it shall be mandatory upon said board to at once proceed AAith such work and improvements, if there shall be aAnilable in said county paving fund a sufficient amount to pay the proportion of the cost payable from such fund.”

It will be noted that a petition of the owners of a majority of the property chargeable with the cost of the improvement is necessary before the board is authorized to proceed with the work, and, when such a petition- is filed, it is then the board’s duty to proceed with the improvement, if there are funds available for that purpose.

What, then, did the legislature have in mind in enacting chapter 215, Laws 1919, which has been heretofore set out? Did it mean simply to authorize the officers therein named to sign a petition “to create paving districts?” We think such an interpretation is too narrow-a view to give to the act. In, the first place, as has heretofore been said, a petition addressed to the county board to create a paving district is entirely .unnecessary; so that, if it were held that the act merely authorized the signing of a petition “to create paving districts,” we would ascribe to the legislature the doing of a futile and unncessary thing. Besides this, if the act be literally construed, we have the legislature saying that, whenever any paving district is created along or adjacent to any state. institution, the officers named are authorized to sign a petition in the name of the state to create the district. We are not willing to believe the legislature intended such a futile-and meaningless thing to be enacted into law. Construing the act of 1919 in connection with other laws in pari materia, it seems more reasonable and logical to believe that the legislature intended to authorize the officers named to sign petitions representing the state’s property requesting that the improvement be made,- and that the state’s signature favoring the improvement should be counted the.,same as any other owner of a like amount of property. -

It is true that an assessment could not be levied against the state’s property, in the sense that if it were not paid the property could be sold to satisfy the assessment, but in the sense that the amount of special benefits to the state’s property should be determined and paid was, we think, clearly within the intendment of the legislature. This, we think, is’ shown by the fact that an appropriation Was made amply sufficient to cover the amount of special benefits, which it might be determined the state’s property received by the improvement.

'We are, therefore, of the view that' under section 1, ch. 215, Laws 1919, wherever a paving district is created by the board of county commissioners;,-which includes property-belonging to the state, the officers having in charge state institutions are authorized to sign a petition requesting the board to proceed with the improvement:

Plaintiffs next contend that, if' it -be assumed that the officers named were authorized to sign petitions for the improvement in the name of the state, such power was not properly exercised. It is argued that a petition signed, “Board of Commissioners of State Institutions, by Henry C-erdes, Chairman,” was not a signature of the state of Nebraska. We cannot agree with this contention. The spirit of the act was to permit the-officers in charge of'the state institutions to sign the petition for and on behalf of the state. A quite analogous question arose in Eddy v. City of Omaha, 72 Neb. 561. In that-case the title to the property was in the school district. A paving petition in behalf of the school district was signed, “Board of Education, by Jonathan Edwards, President,” and was held sufficient.

It is next argued by the plaintiffs that the proceedings of the board are void because more than one road is included in the improvement. While it-appears that more than one road is included-in the improvement, it also ap’pears that the improvement, considered as a whole, constituted but a single unit, and forms; a connected pavement. While the authority granted to, the county board is to pave “any road, highway or boixTevard,-” using the singular number, we think it too narrow a construction of the statute to hold that a separate and distinct petition of the property owners is required where two or more roads are joined in one improvement:-' If a neighborhood is better accommodated by an improvement in the form of a cross or circle, or any other figure', than by a straight line, the law we are now considering does not forbid it. The present case is not analogous to those arising under the laws governing paving in cities, in which it has been held that separate streets cannot be included in a single improvement.

It seems clear, therefore, that the plaintiffs are not entitled to the relief prayed upon the ground that the board was without jurisdiction to proceed with the improvement, or to sit as a board of equalization and levy the assessment against the plaintiffs’ property.

There is another theory suggested relating to that branch of the case wherein plaintiffs seek to recover the amount of special assessments paid under protest, which deserves . consideration. Section 4, ch. 200, Laws 1915, gives to an aggrieved party a remedy in a direct action to recover so much of a special assessment paid by him as he shows to be illegal, inequitable and unjust. However, certain conditions precedent to the exercise of this right must be observed, among them, that the payment made by the aggrieved party should be under protest, with notice that he intends to sue to recover the same, in which notice he is required to state his grievance and the grounds therefor, and that the action must be brought within 60 days from the date of payment. This section further provides:

“No court shall entertain any complaint that such party was authorized to make and did not make to said board when sitting as a board of equalization, nor any complaint not specified in such notice fully enough to advise .such board of the exact nature thereof, nor any complaint that does not go to the groundwork, equity and justice of such assessment.”

The plaintiff’s petition charged that the amount of the assessment upon their respective properties is illegal, unjust, and not in accordance with special benefits. The petition, however, does not charge that the plaintiffs made any complaint to the county board sitting as a board of equalization. The remedy thus provided by the act of 1915 is made to depend upon certain prerequisite conditions which the plaintiffs have not complied with, and, therefore, this special remedy is not open to them. It has been repeatedly held by this court that a board of equalization when properly in session, with due notice given, acts judicially, and its action within its jurisdiction, where no fraud is shown, is not open to collateral attack. The remedy in such case is by error proceedings. Webster v. City of Lincoln, 50 Neb. 1; Portsmouth Savings Bank v. City of Omaha, 67 Neb. 50; Morse v. City of Omaha, 67 Neb. 426.

Plaintiffs can hardly claim a lack of knowledge of the assessment or of their rights with respect thereto. Section 3, ch. 200, Laws 1915, provides, in substance, that the board shall give due notice of the time and place of its meeting when sitting as a board of equalization, by publishing a notice once a week for three successive weeks in some newspaper in general circulation in the county at least ten days prior to the sitting of the board of equalization, or by service of a personal notice on each owner of property within the improvement district. The board of equalization is required to have for inspection a plat or map of the district showing the location of the improvement and the lots, tracts and parcels of land embraced in said district, and also submit a tentative plan of the assessment and allowance of damages, if any, with respect to each lot, tract or parcel thereof, and shall then hear any objections or complaints on behalf of the owners of such real estate as to the assessments of benefits, or the allowance of damages. A proper tribunal was created to hear the complaints of an aggrieved party and opportunity afforded to be heard. We are unable to see wherein the plaintiffs have a legal cause of complaint.

It would seem, therefore, that the plaintiffs have not stated a cause of action which entitles them to recover upon any theory of the case which has been suggested; and, also, that the demurrer to the petition was properly sustained and the action dismissed.

The judgment of the district court is

Affirmed.

Morrissey, C. J., and Aldrich, J., dissent.