dissenting.
I cannot concur in the majority opinion for the follow*194ing reasons: Subdivision 2, sec. 107, ch. 12ft, Comp. St. 1907, which was in force and constituted a part of the Omaha charter when the improvement district in question was created, gave the mayor and council power to order a street improvement upon a petition signed by the record owners of a majority of the frontage of taxable property within the district, and contained no provision which required the signatures of the owners of nonabutting property which would utlimately be benefited thereby. It appears that the owners of the lots in question herein were not required to sign the petition, and therefore the charter gave them no right to protest against the formation of the improvement district, or to select materials to be used in making the street improvement. See subdivision 2, sec. 108 of the charter. This fact gave appellants no legal right to complain of the assessment in question, for, as was held in Kountze v. City of Omaha, 63 Neb. 52, it would have been competent to commit the propriety of paving the streets of Omaha to the uncontrolled discretion of the mayor and council in all cases; and in Dennison v. City of Kansas, 95 Mo. 416, it was said: “The legislature can confer on a city council the poAver to improve the streets of the city at the cost of the property owners without requiring a petition therefor.”
It appears from the record that the questions actually litigated and determined by the district court are as follows: Did the board of equalization and assessments have the power to create a taxing district embracing lots not actually abutting upon the street improvement? And could such nonabutting lots be taxed to pay for the improvement to the extent and amount to which they were benefited thereby? Chapter 12ft, Comp. St. 1907, commonly called the Omaha charter, so far as it relates to the foregoing questions, reads as follows: Section 177. “All special assessments to cover the cost of any public improvements herein authorized shall be levied and assessed on all lots, parts of lots, lands and real estate specially benefited by such improA'-ement, or within the 'district *195created for the purpose of making such improvement, to the extent of the benefits to such lots, parts of lots, lands and real estate by reason of such improvements, such benefits to be determined by the council sitting as a board of equalization. Where they shall find such benefits to be equal and uniform, such assessment may be according to the foot, frontage, and may be prorated and scaled back from the line of such improvement according to such rules as the board of equalization shall consider fair and equitable.” It is provided by section 180: “In cases where paving has been already done in whole or in part, or contracts have been let therefor under existing laws, in case the lots and real estate abutting upon that part of the street ordered paved as shown upon any such plat or map, are not of uniform depth as well as in all cases where, in the discretion of the board of equalization, it is just and proper so to do, the said board shall have the right and authority to fix and determine the depth' to which real estate shall be charged and assessed with the cost of such improvement, without regard to the line of such lots, the same to be fixed and determined upon the basis of benefits accruing to the real estate by reason of such improvement. The provisions of this section in regard to the depth to which real estate may be charged and assessed shall apply to all special assessments except assessments for sidewalks.”
The record discloses that the board of equalization found that the lots situated upon each side of the street improvement in question to the center of each adjoining block were benefited by the improvement, and therefore, to that extent, included the nonabutting lots owned by the appellants within the assessment district and assessed them for actual benefits. By section 6, art. IX of the constitution, it is provided: “The legislature may vest the corporate authorities of cities, towns and villages, with power to make local improvements by special assessment, or by special taxation of property benefited.” Therefore, it seems clear that the foregoing provisions of the Omaha *196charter are not unconstitutional, and from a reading of those sections it is not to be doubted that the board of equalization, in creating the taxing district, and in making the assessments complained of; did not exceed its jurisdiction. It apears that the district court found that' the property of appellants was especially benefited to the extent of the assessments of which they, complain. That question having been litigated and determined by the district court in favor of the city, and there being sufficient evidence in the record to sustain the finding, a court of review should not set it aside.
The majority opinion holds that the provisions of sections 186 and 198 of the charter, which authorize a relevy of special assessments, and provide for the issuance of bonds to pay for street improvements, require us to place such a construction upon the charter as will prohibit the board of equalization and assessments from assessing property benefited by the improvement to pay for such benefits unless it is included in the ordinance passed and approved by the mayor and city council creating what is called an improvement district. In answer to this declaration it may be said that, at the request of the inhabitants of the city of Omaha, the legislature, in the year 1905, enacted a law creating charters for cities of the metropolitan class; and since that time the authorities of the city of Omaha have paved and improved many miles of its streets, and to pay the costs of such improvements the property actually benefited thereby has been assessed to the extent of such benefits. Unless compelled to do so, we should not reverse the judgment of the district court and adopt a different construction of the charter provisions. To do so will result in great hardship and confusion, will encourage litigation, and the courts will soon be congested with suits by which the many will seek to compel the few to bear the whole burden of paying for necessary public improvements.
In Page and Jones on Taxation by Assessment a clear distinction is made between what is called an improvement *197district and a taxing district. An improvement district as such is scarcely mentioned at all in that work, while the whole treatise deals almost exclusively with what is called the taxing district. In section 554 of the work it is said: “If,- on the other hand, the legislature has given to commissioners specially appointed for that purpose, power to determine what property is benefited and thus to lay out the assessment district, the city council cannot, by restricting the district to the property contiguous to the improvement, prevent tire commissioners from including property benefited by the improvement but not contiguous thereto.” It must be observed that the Omaha charter confers the power upon the city council to order the improvement, but withholds the authority from that body to create the taxing district. It confers the power to determine what property is benefited and to assess the same to pay for the improvement upon the board of equalization and assessments. Under a like charter, in In re Westlake Avenue, 82 Pac. 279 (40 Wash. 144) it was said: “Under laws 1893, p. 189, ch. 84, providing that all property benefited by a local improvement shall be assessed by commissioners appointed by the court, and imposing on the commissioners the duty to examine the locality where the improvement is proposed to be made and the parcels that will be benefited, the commissioners are authorized to determine what property is benefited, and the court appointing them cannot restrict the assessment to the property embraced in the district prescribed by the ordinance provid ing for the improvement, or set aside an assessment roll made by the commissioners because they assessed property not within the district created by the ordinance.” This rule was also approved, in Bigelow v. City of Chicago, 90 Ill. 49 (see p. 55); People v. City of Buffalo, 147 N. Y. 675; Spencer v. Merchant, 100 N. Y. 585. In People v. City of Buffalo, supra, it was said: “Section 143 provides that the common council shall estimate and fix the amount of money to be raised by local assessment. There is no provision that the common council shall fix the assessment *198district. In the absence of any indication that the assessors or other body should possess this power, it might very well be that it would reside with the common council und.ec the grant of legislative power. But section 145 declares that the board of assessors shall assess the amount ordered to be assessed for local improvements upon the parcels of land benefited by the work, act or improvement in proportion to such benefit. The common council under the charter are to determine what local improvements shall be made and the amount to be locally assessed therefor. But the clear implication from section 145,. in the absence of any cither charter provision on the subject, is that the assessors are both to fix the district of assessment and distribute the tax.” From the foregoing it seems clear that the judgment of the district court in construing the sections of the charter in question is supported both by principle and precedent.
It has also been suggested that the form of the bond described in section 198 prevents us from approving the construction adopted by the city authorities and the trial court. Upon this point it may be said that it is the duty of the board of equalization and assessments to determine what property is actually benefited by the improvement, and the final determination of that question fixes the boundaries of the improvement or taxing district; and in case it is deemed best to issue bonds to reimburse the city for the cost of the improvement instead of dividing the tax into ten annual payments, then the board should designate; the taxing district by the number adopted at the time the improvement is ordered. This would comply with the requirements of the charter and avoid any confusion or misunderstanding. Upon a careful review of the authorities and of the charter provisions, I am of opinion that the construction given by the district court to those provisions is a reasonable one, and ought to be sustained.
Finally, it appears that the appellants have had their day in court; that the questions presented by them have been fairly litigated and determined; and it follows thai *199the payment of their just proportion of the cost of the street improvement according to the special benefits accruing to their lots does not deprive them of their property without due process of law. Chicago, B. & Q. R. Co. v. State, 47 Neb. 550, 53 Am. St Rep. 557. For the foregoing reasons, the judgment of the district court should be affirmed.
Eos®, J., concurs in this dissent.