B. & M. R. R. Co. v. Bd. of Cnty. Comm'rs of Saunders Co.

• Decision Date: 01 January 1880
• Parties: THE B. & M. R. R. CO., IN NEBRASKA, APPELLEE, v. THE BOARD OF COUNTY COMMISSIONERS OF SAUNDERS CO., APPELLANT.
• Court: Nebraska Supreme Court

9 Neb. 507

4 N.W. 240

THE B. & M. R. R. CO., IN NEBRASKA, APPELLEE,

v.THE BOARD OF COUNTY COMMISSIONERS OF SAUNDERS CO., APPELLANT.

Supreme Court of Nebraska.

Filed ________, 1880.

Appeal from a decree of the district court of Saunders county, Post, J., presiding, enjoining the collection of taxes levied in the year 1875, to pay school district bonds issued by several districts of that county, and dismissing the petition as to land road taxes levied for the same year.T. M. Marquett, for plaintiff, appellee.

Clinton Briggs, for defendant, appellant.

LAKE, J.

In this case two questions are presented for our decision. The first concerns the land road tax of one dollar upon each 40-acre tract, without regard to value, levied by the county commissioners for the year 1875, pursuant to the requirements of the statutes then in force; and the second, certain taxes levied by them upon their own motion to discharge the bonded indebtedness of school districts within the county as it should fall due.

As to the road tax, the plaintiff contends that, although legally imposed, it was rendered invalid and uncollectible by force alone of our present constitution, which requires all taxes upon property to be levied according to its valuation. The constitution went into operation on the first day of November, 1875, after said taxes were levied, and before they became delinquent. The precise question raised upon this road tax was decided in the case of B. & M. R. R. Co. v. York county, 7 Neb. 489, where it is held that the tax having been levied before the constitution took effect, its provisions as to the mode or basis of levy did not apply. The decision in that case furnishes a guide for us in this, and we must hold that the collection of said road tax cannot be enjoined.

As to the levy for district school bond purposes, it appears, as before stated, that the commissioners made it on their own notion, and without its having been voted or “reported by said school district boards or either of them.” It is contended on the part of the plaintiff that, without the affirmative action of the proper district in ordering a levy to meet its bonded indebtedness, the county commissioners were powerless to make one. On the other hand this independent action of the commissioners is sought to be upheld by the act of Febuary 25, 1875, entitled “An act to amend ‘An act to provide for the registration of precinct or township and school district bonds.’ ” Laws 1875, p. 185. The only change of the former statute sought by this amendment is embodied in these words: “It shall be the duty of the board of county commissioners in each county to levy annually upon all the taxable property in each precinct or township and school district in such county a tax sufficient to pay the interest accruing upon any bonds issued by such precinct, township, or school district, and to provide a sinking fund for the final redemption of the same; such levy to be made with the annual levy of the county, and the taxes collected with other taxes, and when collected shall be and remain in the hands of the county treasurer a specific fund for the payment of the interest upon such bonds, and for the final payment of the same at maturity.

Now the original act, conforming strictly to its title, provides merely what steps shall be taken for the registration of these bonds by the county clerk, upon facts to be reported to him by the proper precinct or school district officers. Gen. St. 883. The first section makes it the duty of these local officers, “after first having filed for record with the county clerk the question of submission, return of votes for and against, notice and...