Bellevue Improvement Company v. Village of Bellevue
| Decision Date | 22 March 1894 |
| Docket Number | 5502 |
| Citation | 58 N.W. 446,39 Neb. 876 |
| Parties | BELLEVUE IMPROVEMENT COMPANY ET AL., APPELLANTS, v. VILLAGE OF BELLEVUE ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Sarpy county. Heard below before SCOTT, J.
Injunction granted against the enforcement of a tax for grading a street upon the ground.
Arthur C. Wakeley, for appellants:
The assessment for the regular taxes is void because plaintiffs' lots, utterly regardless of their value relative situation, or local condition, were, by the assessor, lumped together, and indiscriminately assessed at a valuation of ten dollars each. (California & Oregon Land Co. v. Gowen, 48 F. 771.)
The assessment is void because the assessor did not actually view the lots in controversy, as required by the provisions of section 52, chapter 77, Compiled Statutes. (Marsh v Board of Supervisors of Clark County, 42 Wis. 502; State v. Dodge County, 20 Neb. 598.)
The assessment is void because not verified as required by section 63, chapter 77, Compiled Statutes. (Morrill v Taylor, 6 Neb. 236; Lynam v. Anderson, 9 Neb. 367; Hallo v. Helmer, 12 Neb. 87; McNish v. Perrine, 14 Neb. 582.)
The assessment is void because of the hostility of the deputy assessor to the improvement company. (Cooley, Taxation, ch. 24, p. 547.)
There can be no void tax without a previous legal and valid assessment. It is not enough that there should be a mere formal assessment by some process. The rule by which the value is determined must be one that may lead to approximately correct results. If an arbitrary rule or process is resorted to for determining the value instead of the best judgment of the assessor, it is fatal to the validity of the assessment. (Cooley, Taxation, ch. 12, p. 258; Blackwell, Tax Titles [5th ed.], sec. 194; City of Nebraska City v. Nebraska City Hydraulic Gas & Coke Co., 9 Neb. 339; Lynam v. Anderson, 9 Neb. 367; South Platte Land Co. v. City of Crete, 11 Neb. 344; Hallo v. Helmer, 12 Neb. 87; McNish v. Perrine, 14 Neb. 582; Hersey v. Board of Supervisors of Barron County, 37 Wis. 75; Johnson v. City of Milwaukee, 40 Wis. 315; Marsh v. Board of Supervisors of Clark County, 42 Wis. 502; Plumer v. Board of Supervisors of Marathon County, 46 Wis. 163; Watkins v. Zwietusch, 47 Wis. 513; Graves v. Bruen, 11 Ill. 431; City of Chicago v. Burtice, 24 Ill. 489; Chicago, B. & Q. R. Co. v. Cole, 75 Ill. 594; McCready v. Sexton, 29 Iowa 356; State v. Cook, 82 Mo. 185; Woodman v. Auditor General, 52 Mich. 28; Perry County v. Selma, M. & M. R. Co., 58 Ala. 546; McReynolds v. Longenberger, 57 Pa. St., 13; California & Oregon Land Co. v. Gowen, 48 F. 771.)
That injunction is a proper remedy to remove or prevent a cloud upon title to real estate by the assessment of an illegal tax or the issuing of a tax certificate or tax deed based upon such illegal tax, creating a lien, real or apparent, on real estate, is no longer doubted. (South Platte Land Co. v. Buffalo County, 7 Neb. 253; High, Injunctions, sec. 494; Blackwell, Tax Titles [5th ed.], sec. 1056; Town of Ottawa v. Walker, 21 Ill. 605; Dunnovan v. Green, 57 Ill. 63; Olmstead v. Henry County, 24 Iowa 33; Louisville & N. R. Co. v. Warren County, 5 Bush [Ky.], 243; Palmer v. Rich, 12 Mich. 414; Scofield v. City of Lansing, 17 Mich. 437; Chicago, B. & Q. R. Co. v. Cole, 75 Ill. 591; Johnson v. Hahn, 4 Neb. 139; Crane v. City of Janesville, 20 Wis. 305; Milwaukee Iron Co. v. Town of Hubbard, 29 Wis. 57; Marquette, H. & O. R. Co. v. City of Marquette, 35 Mich. 504.)
The plaintiff are entitled to an injunction, notwithstanding section 144 of the revenue law. (Touzalin v. City of Omaha, 25 Neb. 824; Thatcher v. Adams County, 19 Neb. 486.)
John Q. Goss, contra:
The assessor evidently adopted the suggestion of the board of assessors, as to the valuation of the lots in Bellevue, and made the value suggested by them his assessment, which, while irregular, does not render a tax levied thereunder void. (Hull v. Kearney County, 13 Neb. 539; South Platte Land Co. v. City of Crete, 11 Neb. 344.)
The informality complained of as to the signing of the oath by the assessor does not affect the validity of the tax levy. (Comp. Stats., secs. 141, 142, ch. 77; Wood v. Helmer, 10 Neb. 65; South Platte Land Co. v. City of Crete, 11 Neb. 344; McClure v. Warner, 16 Neb. 447.)
The authority to levy special assessments for sidewalks is clearly vested in the boards of trustees of villages. The tax was not for an illegal or unauthorized purpose, and the action of the board will not be interfered with by injunction. (Comp. Stats., sec. 69, subd. 7, ch. 14; Wilson v. City of Auburn, 27 Neb. 435; 1 High, Injunctions, sec. 490.)
Injunction is not the proper remedy, and cannot be allowed in cases of this character. (Comp. Stats., sec. 144, ch. 77; Burlington & M. R. R. Co. v. Seward County, 10 Neb. 211; Wilson v. City of Auburn, 27 Neb. 435; 1 High, Injunctions [2d ed.], secs. 485-488, 502, 503, 544, 545.)
A person deeming himself aggrieved by the assessment of his property has his remedy before the board of equalization. (Comp. Stats., sec. 70, ch. 77.)
From the decision of that board error lies to the district court, and the action of the board will not be reviewed in equity proceedings. (Code of Civil Procedure, sec. 580; Sioux City & P. R. Co. v. Washington County, 3 Neb. 30; McGee v. State, 32 Neb. 154.)
OPINIONThe facts are stated in the opinion.
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, 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.
The 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 answer 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 toward 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...
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