Omaha daily bee., 1883-08-08
THE RIGHTS or TAXPAYERS.
Continued from Eighth page

Continued from Eighth page
be the duty of the mayor and council to
pave, etc" Upon this point, without
enlarging upon the reasons for the con
ditions, | think the fair construction of
the law is, that the mayor and council
have power to order and provide for pay
ing, etc, whether II majority of lot own.
ers, or any owners, petition therefor or
not; but whenever a majority, rs defined
by the statute, do SO petition, it becomes
the duty of the mayor and council to act
in conformity Herewith. In either case,
OF course, they must keep within the
conditions and limitations of their BOW
crs, and within the means provided for
their work as elsewhere provided, and
must use the materials which the pre-
scribed majority of owners hal desig-
nate. This construction gives effect to
both provisions and harmonizes them.
Under the first, the mayor and council
may, in their discretion, order or omit to
order payemcuts. Under the second, it
becomes their duty to order them if n
sufficient number of real estate owners
petition therefor. Had it been intended
that the mayor should have no power un.
til a petition should be presented, signed
by the requisite number of owners, APP
propriate words to so indicate should
have been used. This view, | might add,
is not submitted upon as free reflection
or examination on my part, rs would be
demanded if the decision depended upon
its correctness.
\ controlling question in the case is,
whether, after the paving was ordered,
the requisite number of lot owners mott
fed the council, in the manner, and
within the time prescribed by the statute,
of their determination hat the paving
material to be used should be Trinidad
asphaltum. If they did so, the mayor
and council, upon the case as presented,
are about to contract for and use an I'M
authorized material, to-wit: Colorado
sandstone. To determine this question
two or thre9 clauses of the section must
be noticed. The first is found on page
1Ol, and is in the words following, so far
as it is necessary to quote: "Whenever
the owners of lots or land abutting upon
the streets or alleys within any paving
district, representing a majority of feet
front thereon. shall petition the council
to pave, repave or %macadamize such
streets OF alleys, it shall be the duty of
the council to pave, repave or macadam-
ize the same; and, in all cases, there
shall be used such material as such ma
lority of owners shall determine upon"
Then follows a proviso that the council
shall be notified, in writing, of this de-
termination, within thirty days after the
passage and approval of the ordinance
ordering the paving-otherwise, the
mayor and council shall determine upon
the material to be used. 1t seems to be
Il plain and obvious deduction from this
provision, considered by itself, that the
lot owners intended are those only who
W real estate actually AUDITING or
fronting upon, the street to be paved.
There IS no reference to other owners
within the paving district, or taxing dis
trict, in which the street may lie.
But there are subsequent provisions
which must be noticed. One of them
defines SLOT" to mean a lot, as designated
upon the recorded plat, or a generally re-
cognlzed map OF the city. Another gives
the mayor and council power, when the
lots abutting upon the city are of unequal
depth, or, for any other reason making it
Just and proper, to determine the depth
to which the real estate shall be charged,
and assessed with the cost of the improv-
ment; and which may be to a greater
depth than that of the AUDITING lots; and
the real estate to be charged and assessed
may, or may not, be included in the paw
ing districts to be established. Finally,
it is provided that in determining wheth-
the requisite majority of owners have
joined in a petition for paving; or in a
determination of the kind of materials to
be used, the mayor and council may in
their discretion, consider and take into
account all of the owners of real estate to
be charged and assessed with the cost of
Improvement or only such as own real
estate that in fact abuts upon the part of
the street proposed to be so improved"
Taken altogether, these several pro-
visions make it clear that the power to
require the council to pave, or to
determine the material, belongs to
II or the other of two classes
of owners; namely: First, to those who
represent "a majority of feet front on
the street to be paved; or, second, to a
majority of the owners of all real estate
to be charged or assessed with the cost
of the improvement. Also, it logically
and necessarily follows that until the
mayor and council have determined
what real estate is to be so charged and
assessed, it is impossible for them to
determine how many owners of such
real estate there will be; or how many
will constitute a majority thereof; and
until then the council can have no right
to disregard the petition or the choice of
owners representing n majority of feet
front. The decision belongs to these
owners, unless, and until the mayor and
council by their action make it possible
to apply a different test, and, in their
discretion, do apply it after giving to the
other owners an opportunity to petit
ton or express their choice. Adher-
ence to this construction gives to lot
owners their statutory rights and also
preserves TO the mayor and council their
full perogatives.
Let us apply these rules to the facts
before us.
1t is conceded that the mayor and
council have not yet determined what
real estate is to be charged and assessed.
Therefore, neither they nor the court can
take into account the u%nknowable overs
of property yet to be ascertained and de-
fined. The inquiry, therefore, must be
limited to owners of ''feet front" A pa
per addressed to thecouncil and deliver
ed to the city clerk, for filing within
/ tl,trt,r l,,v, F,,,, H. - ~