Bellevue Imp. Co. v. Village of Bellevue

• Decision Date: 22 March 1894
• Citation: 58 N.W. 446,39 Neb. 876
• Parties: BELLEVUE IMP. CO. ET AL. v. VILLAGE OF BELLEVUE ET AL.
• Court: Nebraska Supreme Court

39 Neb. 876

58 N.W. 446

BELLEVUE IMP. CO. ET AL.

v.VILLAGE OF BELLEVUE ET AL.

Supreme Court of Nebraska.

March 22, 1894.

Syllabus by the Court.

1. Where an answer traverses certain allegations of a petition not in direct language, but merely by reference to the numbers of the lines of the original petition where those allegations occur, and where the transcript filed in this court does not disclose the numbering of the lines upon the original petition, there having been a general finding for the defendants in the district court, this court will presume all the material allegations to have been put in issue by the answer.

2. A court of equity will not interfere to prevent the collection of taxes merely because the assessment was invalid. To obtain relief the plaintiff must bring himself within some recognized rule of equitable jurisprudence.

3. Neither the fact that an assessment was not based upon the assessor's judgment as to the value of the property, nor that the assessor did not make or return an oath with the assessment roll, so vitiates the assessment as of itself to justify an injunction against the collection of a general tax founded upon such assessment. Land Co. v. Crete, 7 N. W. 859, 11 Neb. 344;Wood v. Helmer, 4 N. W. 968, 10 Neb. 65, followed.

4. In such a case, the fact that plaintiffs were the owners of a large number of lots affected by the tax will not justify interference for the purpose of preventing multiplicity of suits, or to remove a cloud cast upon the title; section 144 of the revenue act providing an adequate remedy at law.

5. Where a village board undertakes to levy and collect a local assessment for the construction of sidewalks, without in fact constructing the sidewalks, before obtaining any proposals for their construction, and before in any manner ascertaining or estimating the cost of their construction, held, that such local assessment is absolutely void.

6. Where a tax is void,--that is, where there is no tax which the plaintiff is in equity bound to pay,--he may invoke the aid of a court of equity to protect his rights by an injunction, notwithstanding section 144 of the revenue act. Touzalin v. City of Omaha, 41 N. W. 796, 25 Neb. 817, followed.

Appeal from district court, Sarpy county; Scott, Judge.

Action by Bellevue Improvement Company and Henry T. Clarke against the village of Bellevue and others to restrain the collection of certain taxes. Defendants had decree, and plaintiffs appeal. Reversed in part.Arthur C. Wakeley, for appellants.

John Q. Goss, for appellees.

IRVINE, C.

This is an action to enjoin the collection of certain taxes. A temporary injunction was granted, but, on final hearing, dissolved, and the action dismissed. The county clerk was made a defendant, and it was sought to enjoin him from transcribing and carrying out upon the assessment rolls the taxes complained of, and delivering the tax list to the treasurer. The parties, pending the action, however, stipulated that this portion of the injunction should be vacated. This practically discharged the county clerk from the action, and the decree, so far as it affects him, must, in any view of the case, be affirmed.

This petition commenced by pleading a number of acts of the territorial legislature incorporating the city of Bellevue, and by pleading that in 1893 certain proceedings were had for the purpose of incorporating the same territory as the village of Bellevue, under the general law. It is alleged that these later proceedings were void, that the alleged city of Bellevue remains in existence, and that there is no such municipality as the village of Bellevue. The answer upon this point denies certain of the allegations of the petition, but it does not traverse them in direct language, but refers to them by the numbers of the lines upon which they appeared in the original petition. No motion was made to make the petition more specific. We have not the original petition before us, and cannot, therefore, ascertain what facts were put in issue. Upon appeal the presumption is in favor of the correctness of the judgment, and we must resolve such doubts as arise as to the issues framed in such manner as to support the judgment below, and therefore treat all these allegations as in issue. No evidence was introduced in their support. No argument is addressed to that portion of the case. Without deciding the question as to the validity of taxes sought to be imposed by a municipal corporation de facto and not de jure, we must presume the legal existence of the village of Bellevue.

The plaintiffs show that they are the owners of about 3,300 lots in that village, and they complain of two classes of taxes sought to be imposed upon them. One of these classes consists of general taxes attempted to be levied for municipal purposes; the other consists of local assessments levied for sidewalk purposes. These classes require separate treatment.

1. As to the general taxes, the petition contains many allegations to the effect that, while the corporate limits are large, the actual village is very small, and that nearly all of plaintiffs' lots lie entirely outside of the village proper; that, except upon paper, they have no existence as lots; that no streets pass along them, and that they constitute an open, uncultivated area of land. There is some evidence in support of these allegations, but no right is claimed in argument by reason thereof, except indirectly, as affecting the justice of the tax, and we shall therefore pass over these issues without further comment as to their legal effect. It is alleged that each of said lots, regardless of its value, has been by the assessor valued at $10; that such valuation is greatly in excess of the true value of a portion of the lots, and that the assessed valuation is enormously in excess of the valuation of other property similarly situated, and that an excessive valuation was placed upon plaintiffs' property because of an animosity towards the plaintiffs upon the part of the assessor. The petition further alleges that the assessment was not verified or sworn to according to law. Upon these averments the decision must rest. Some of them are established by the proof; as to others, the evidence is uncertain or conflicting. The decree finds generally for the defendants, and this finding is supported by the evidence in so far as it relates to the charges against the good faith of the assessor. It does, however, appear without substantial contradiction that the assessors for the different precincts of the county at their meeting determined arbitrarily that such lots should be uniformly assessed at $10 each, and that the assessment was so made in the case of the plaintiffs' lots because of such resolution, and without any exercise of judgment upon the part of the assessor or his deputy, without a view of the property, and wholly regardless of the actual value of the different lots. It also appears that the valuation placed upon these lots was greatly in excess of the assessed valuation upon much other property in the vicinity, apparently of as great actual value. But this feature is not important, because the remedy for a disproportionate valuation would be before the board of equalization.

It further appears that the assessment was made by a deputy, and that the oath taken and returned therewith is in statutory form, and purports to be the oath of the assessor; but that it was signed and made, not by the assessor, but by his deputy. Section 51 of the revenue law permits an assessor, under certain circumstances, to appoint deputies; but it provides that such deputies shall make their returns to the assessor. It is the assessor himself who is required to make the return to the county clerk, and, by section 63 of the revenue act, required to make oath thereto. Perhaps, where a deputy acts, an oath should be made by the deputy, but this does not excuse the assessor from making oath, whether or not he has a deputy. It is his duty to make the return to the county clerk under oath, and an assessment roll returned by a deputy to the county clerk under the oath of the deputy, and without any oath by the assessor, does not satisfy the law. If an injunction can be granted against the enforcement of a tax based upon this assessment, it must be based upon the theory that the assessment was absolutely void. because of the fact that it was not the result of the assessor's estimate of the value of the property, and because there was no proper oath returned therewith. There is a marked distinction between the position of a taxpayer who, in proceedings at law, defends upon the ground of illegality of the tax, and that of one who comes into a court of equity seeking affirmative relief. In the former case the taxpayer may stand upon his legal rights, and insist upon a more or less strict compliance with the requirements of law. In the latter he must bring himself within some recognized principle of equitable jurisdiction. Wood v. Helmer, 10 Neb. 65, 4 N. W. 968;South Platte Land Co. v. City of Crete, 11 Neb. 344, 7 N. W. 859;Spargur v. Romine...