Rooney v. City of South Sioux City , 111 Neb. 1 ( 1923 )

Rose, J.

This is a suit for an injunction to prevent defendants from collecting for special benefits municipal paving assessments of $9,830.24 on 81.5 acres of land owned by plaintiff in South Sioux City. Defendants are South Sioux City, its treasurer, and the treasurer of Dakota county. The city council passed an ordinance April 17, 1920, authorizing in one improvement district composed of the entire city the paving of its principal street and two lateral streets, one of the latter intersecting plaintiff’s land. South Sioux City is a city of the second class. Authority to pave its streets is granted by its charter. Comp. St. 1922, sec. 4283. The paving contract was let under the city ordinance May 17, 1920, and the pavemejnt was completed in August, 1921. It is to prevent the collection of assessments for special benefits accruing to plaintiff’s land by reason of the paving that the injunction is sought. The petition contains allegations amounting to pleas that the improvement ordinance never went into effect; that a few acres only of plaintiff’s assessed land is tillable, a portion being swampy and the rest fit for pasturage alone; that her land has not been benefited by the paving, and that the assessments therefor are confiscatory and void. Facts constituting grounds for an injunction were put in issue by an answer. A trial below resulted in a dismissal of the action. Plaintiff has appealed.

To justify the dismissal, defendants call attention to the undisputed fact that plaintiff, with knowledge of the paving, made no objection thereto or to the incurring of the expenses thereof and failed to appear before the assessing officers to resist or correct assessments. The argument on this proposition, however, does not answer the plea that the ordinance authorizing the paving never went into effect and that consequently the assessments for special benefits were void. If the assessments are void, estoppel is no defense to the petition. A familiar rule of equity authorizes an injunction to prevent the collection of void assessments of private property to pay special benefits resulting from the paving of streets.

Are the assessments void? The concluding sentence of the paving ordinance in question is in these words:

“This ordinance shall be in full force and effect from and after its passage, approval, posting and publication, according to law.”

“Approval” included the genuine or authorized signature of the mayor. Ordinances which become laws of a city do not rest in parol. The time of their going into effect does not depend on oral proof. Under the city charter the mayor had power to approve or veto the ordinance. Comp. St. 1922, sec. 4172. He did not sign an approval during his term of office. When he retired the place for his name under the form of approval on the ordinance itself was a blank. In the meantime the streets were paved and the assessments levied. Under the specific provision quoted, the ordinance was not to go into effect until approved by the mayor. He was the chief executive officer. The council had authority to make his approval a condition of allowing the ordinance to go into effect. His approval bore a proper relation to the subject-matter of the ordinance — was germane to the legislation. Both the provision for the paving of the streets and the contingency of approval were valid when the council adopted the ordinance. Making the enactment effective upon its approval was not a prohibited delegation of legislative power to the mayor, but was a legitimate exercise of authority making it effective upon the happening of a contingent event germane to the subject-matter of the legislation. Mayor and City Council of Baltimore v. Clunet, 23 Md. 449; Heman Construction Co. v. Loevy, 64 Mo. App. 430; Thomas v. City of Grand Junction, 13 Colo. App. 80; City of Rushville v. Rushville Natural Gas Co., 132 Ind. 575. A text-writer familiar with legal principles and precedents stated the law as follows:

“Municipal ordinances, otherwise valid, may, like an act of the legislature, be adopted to take effect in the future and upon the happening of a contingent event.” 1 Dillon, Municipal Corporations (4th ed.) sec. 309. .

The provision requiring the mayor’s approval being valid when adopted, the ordinance could not become effective until the happening of that event. State v. Kirkley, 29 Md. 85; City of Buffalo v. Chadeayne, 134 N. Y. 163; Bradley-Ramsey Lumber Co. v. Perkins, 109 La. 317. After the mayor’s term of office expired and after the paving was completed, the private individual who had formerly been mayor wrote his name on the original ordinance under a formal approval thereof, acting pursuant to an attempt on the part of the council to make the municipal record conform to what had previously taken place. When the term of the mayor expired he had no official power as such and his signature as a private individual added nothing to the blank filled by his name. To meet the logic of this situation, defendants assert that the mayor promptly approved the ordinance, but inadvertently failed to sign the approval thereon. In this connection defendants invoke the doctrine that the city council, after the improvement had been made, had authority to correct its former minutes to, speak the truth in regard to the approval — a step said to have been taken. The answer to this argument is that the council had no authority to correct its record to make the ordinance show on its face a timely and legal approval when the truth was that there had never been such an approval. The council by resorting to a correction had no power to discharge a duty imposed by the charter upon the mayor exclusively. Had plaintiff examined this ordinance before the paving was completed, she would have seen that it was to take effect upon its approval — an unperformed official act of the mayor. She was not bound by his undisclosed, unrecorded mental operations or intentions. Penalties and the enforcement of assessments on private property.to pay for public improvements do not rest on such a precarious correction. This phase of state and municipal legislation was subjected to former judicial scrutiny. In State v. Kirkley, 29 Md. 85, 109, the court said:

“A law which, by its own terms, is to have no effect until the happening of a future contingent event, cannot be made effective before the event happens by any acts or series of supplements passed upon the assumption that the event has happened, and that the law is in force. All such acts, instead of possessing any curative powers, merely multiply errors.”

It is argued further that the council had power to pass the ordinance over the mayor’s veto, that the approval of the mayor was unnecessary, that the members of the council were unanimous in passing the ordinance, that the action of the council could have been taken by resolution or motion, and that the affirmative vote of the entire council was all that the city charter required. The fallacy in this argument is the disregarding of the proposition that the action of the council, whatever its form, was to become effective upon the approval of the mayor — an unperformed official act or contingent event which never came to pass.

There seems to be no escape from the conclusion that the paving ordinance never went into effect and that consequently the assessments against the land of plaintiff are void. It follows that she is entitled to an injunction. For the purpose of granting that relief, the judgment is reversed and the cause remanded for further proceedings.

Reversed.