Boettcher v. Holt County

• Decision Date: 09 November 1956
• Docket Number: No. 34007,34007
• Citation: 163 Neb. 231,79 N.W.2d 183
• Parties: Fred E. BOETTCHER et al., Appellants, v. COUNTY OF HOLT in the State of Nebraska, et al., Appellees.
• Court: Nebraska Supreme Court

Page 183

79 N.W.2d 183

163 Neb. 231

Fred E. BOETTCHER et al., Appellants, v. COUNTY OF HOLT in the State of Nebraska, et al., Appellees.

No. 34007.

Supreme Court of Nebraska.

Nov. 9, 1956.

Syllabus by the Court.

1. A general demurrer admits all allegations of fact in the pleading to which it is addressed, which are issuable, relevant, material, and well pleaded; but it does not admit the pleader's conclusions of law or fact.

2. If a county assessor performs the duties in fixing the value of property in the manner required of him by law, the fact that in the performance of the duties he resorted to recommendations and evidence furnished by an appraisal committee does not affect the validity of the assessment.

3. If a county assessor fails to make an inspection of real estate and relies upon and accepts for assessment purposes the valuation of an appraiser, the assessment is not void and thereby no ground is afforded for injunctive relief.

4. Where the complaint of a taxpayer is based upon irregularities as distinguished from incidents rendering the tax void, the remedy of the taxpayer is not by injunction but by resort in the first instance to the board of equalization.

Francis D. Lee, Atkinson, for appellants.

William W. Griffin, O'Neill, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

YEAGER, Justice.

This is an action in equity instituted by Fred E. Boettcher and 18 other named persons, residents of Holt County, Nebraska, on their own behalf and on behalf of all other residents of Holt County similarly situated, plaintiffs and appellants, against the County of Holt, Nebraska, the county treasurer, the county assessor, the county board of equalization, the county clerk, and the seven county supervisors of Holt County, Nebraska, defendants and appellees, the object and purpose of which is to secure an injunction against the collection of taxes based upon the valuation of real estate for the year 1955 which was in excess of the valuation for the year 1954.

The plaintiffs duly filed their petition and to it the defendants filed a general demurrer. The demurrer was sustained and the action dismissed. From the order sustaining the demurrer and the judgment dismissing the action the plaintiffs have appealed.

The assignments of error as grounds for reversal are that the court erred in sustaining the demurrer; that the court abused its discretion; and that the order entered is not sustained by and is contrary to law.

Attention has not been called in the briefs to the abuse of discretion of which complaint is made, therefore it becomes apparent that the only question for consideration is that of whether or not the petition states a cause of action. This of course requires an examination of the petition. The examination is to be made in the light of the following rule: 'A general demurrer admits all allegations of fact in the pleading to which it is addressed, which are issuable, relevant, material, and well pleaded; but does not admit the pleader's conclusions of law or fact.' In re Estate of Halstead, 154 Neb. 31, 46 N.W.2d 779, 781. See, also, Richter v. City of Lincoln, 136 Neb. 289, 285 N.W. 593; Johnson v. Marsh, 146 Neb. 257, 19 N.W.2d 366.

It does not appear that the petition should be set out in its entirety here. The conclusion reached is that a summary of pertinent parts will suffice. What it is believed contains a fair summary of the pertinent parts follows.

By the petition it is alleged that all of the named plaintiffs were in 1955 the owners of lands in Holt County, Nebraska, described in the petition, and that the defendants, except the county itself, were officers of the County of Holt as described above; that the board of equalization of the county, prior to the time fixed by law for it to sit as a board of equalization entered into a contract with E. T. Wilkins Associates, without complying with statutes, to appraise and revalue the real estate in the county; that a report required by the terms of the agreement with E. T. Wilkins Associates was not furnished; that E. T. Wilkins Associates and a reappraisal committee made a reappraisal and reclassification of the real estate in the county but that it was contrary to the statutes and the Constitution of the State of Nebraska (the identity of the committee is not clearly disclosed); that the appraisal was illegal and unconstitutional for the following reasons: E. T. Wilkins Associates were unlawfully employed; the report was made to the county assessor and not to the board of equalization; that no minutes were in the hands of the county assessor and that the assessment of the assessor was made from the records of E. T. Wilkins Associates; that the committee failed to make a report to the county assessor before May 1, 1955; that E. T. Wilkins Associates used unqualified workers; that E. T. Wilkins Associates failed to make actual inspections; that each of the plaintiffs was given due notice prior to the first Monday in May that his assessment had been changed from the previous year which change was described in the notice; and that also they were given notice...