Omaha daily bee., 1883-08-08

puJ my IMPRESSION now Is, tnNt as tenant
for a term of years obligated to pay the
assessment, he is the proper per
son to sign. This question, however,
may be reserved.
1t is claimed that the mayor and coun-
ell decided that the requisite majority of
owners had not determined on the ma
tcrial and that such u decision is con.
and cannot be received.
| doubt if the council record purports
to show a determination Of the fact or to
show anything except ON legal conclusions.
he that us it may, it is not shown, nor do
| understand it to be claimed, that the
owners ever heard before, or by the coun-
Gil, as to the facts, or had an opportunity
to be heard. No ordinance, resolution,
bylaw, OF practice of that body is proven
under which those Interested could have
of Il hearing, or n right to present
evidence as to their ownership, or au.
thority, or as to whether they constituted
the required majority. To hold that
they are excluded, and can be deprived
of valuable and substantial property
rights by u decision So made, would be
against a cardinal and time sanctioned
principle of American Jurisprudence, if
notin conflict with the very words of our
constitution. The right here in question
is conferred in express words of the stat
ute, and should not be denied upon tech
nical or doubtless grounds.
1t is further urged that this is not n
case for injunction; that, by the law, the
plaintiffs can paytheir special taxes under
protest, and then recover back the
amount by action against the city. |
think this position is not warranted. 1t
is highly probable that if the plaintiffs
and others permit the work to proceed,
without legal interference, they will be
estopped after the pavement shall be con
structed and paid for by the city, or its
liability therefor shall be fixed, to dispute
the tax, upon the ground that
an unauthorized paving material
had been used. The sale
may be otherwise, in case of an entire
want of jurisdiction to enter upon the
work. But, further, the liability for the
tax is not the only wrong involved.
Owners of abutting property have a
interest, as ali tax payers and citi-
have a general interest, in the kind
of pavement to be constructed, and the
material to be used. If the power to de-
termine these things had, for instance,
been vested in the board of public works,
hey had designated the material, it
scarcely be questioned that the mayor
and council could be enjoined from exer-
cising their corporate powers; and ex-
pending the corporate moneys in con-
structing a pavement substantially differ
ent in kind, and materials used, from
that authorized.
The cas- does not call for any present
decision as to how far, if at all, a court
could review the discretion or action of
the mayor and council in the selection of
material when the choice is left to
them; or whether they have or not
chosen wisely IN this instance. No proof
has been offered in support of the allega-
ton as to the quality of the material de-
cided upon by the mayor and council.
The policy of the law, as well as the in
terest of the city, is to permit and en-
courage the widest competition among all
persons, corporations or transportation
companies, interested in furnishing or
carrying paving material. These have an
equal right to be impartially heard.
The public good and private rights
alike demand simply a just and
honest decision, whether this be left to
property owners or the council. There
is involved in the consideration of paving
improvements, under the present law, a
question somewhat but not e~xtendedly
discussed on the argument, which is of
profound Importance, namely, the method
III and by which the cost is to be assessed,
and distributed upon the benefited prop
erty, so as to keep within the limitations
and restraints of the constitution and of
general rules of equality in imposing
such burdens. | do not undertake now
to enter upon this field of inquiry. But
it may not be profitless to say that the
act seems to me to be so framed as to en-
able the mayor and council to charge and
assess the cost of the improvement upon
abutting or contiguous property in pro-
portion to, and not in excess of, the ben
etits thereto derived from the improve
ment. This is a rule upheld by courts
elsewhere of high authority, and which,
under u present constitution, as con
strued by our supreme court, it will be
essential to follow with care and discrim-
nation. The interruption of n much
needed public Improvement is unfortu-
nate; but think the injunction should
be allowed.
At the conclusion of the reading of
Judge Wakeley's opinion Mr.. Edward
w. Simeral on behalf of the petitioners
asked for a decree in accordance with
the decision of the court and that the
court fix a bond to guarantee the city
against loss in case the temporary i%niunc-
ton was not sustained on the final hear
ing. The court fixed the bond ut So, 900
in each suit.
The injunction granted is merely a
temporary one but the cases were argued
at such detail and the points passed upon
by the court cover so much ground that
there is little probability that a motion
to dissolve the injunction can be secured.
In fact 1t is considered very doubtful
whether such a motion will be made at
all by the defendants. This will give to
the temporary injunction the force Of IA
permanent one.
THE EFFECT OF II INJUNCTION
is to throw open the whole matter of paw
ing on the cross streets from Eleventh to
Fifteenth streets inclusive. The council
will now be compelled to readvertise for
petitions for paving material from the
property owners and to notify those who
are to be taxed for the cost, of the nm
provement. All such will have the right
to petition for the material they desire
laid and a majority Of lot owners will
determine the pavement, to be laid. Both
judges agree that the decision in no wise
affects the paving Of Harvey and sixteenth
streets on both of which a majority of lot
-- L. L---L- -. IN