Chicago & N.W. Ry. Co. v. Bauman

• Decision Date: 25 January 1937
• Docket Number: 29938,29939.
• Citation: 271 N.W. 256,132 Neb. 67
• Parties: CHICAGO & N.W. RY. CO. v. BAUMAN ET AL. CHICAGO, ST. P., M. & O. RY. CO. v. BAUMAN ET AL.
• Court: Nebraska Supreme Court

271 N.W. 256

132 Neb. 67

CHICAGO & N.W. RY. CO. v. BAUMAN ET AL.

CHICAGO, ST. P., M. & O. RY. CO. v. BAUMAN ET AL.

Nos. 29938, 29939.

Supreme Court of Nebraska.

January 25, 1937

Syllabus by the Court.

1. If a case be a removable one, upon the filing of a petition for removal, in due time, with a sufficient bond, the case is, in law, removed, and the state court in which it is pending will lose jurisdiction to proceed further and all proceedings thereafter in that court will be void.

2. " It is a rule recognized alike by state and federal tribunals that the court which first acquires jurisdiction of the subject of an action will retain such jurisdiction until the final determination of the controversy." Fitzgerald v. Fitzgerald & Mallory Construction Co., 44 Neb. 463, 62 N.W. 899.

3. " The legislature must be presumed to have had in mind all previous legislation upon the subject, so that in the construction of a statute we must consider the pre-existing law and any other acts relating to the same subject." Nebraska District of Evangelical Lutheran Synod v McKelvie, 104 Neb. 93, 175 N.W. 531, 7 A.L.R. 1688.

4. " That construction of a statute of doubtful meaning given it by those whose duty it is to enforce it, and which construction the legislature has by its continued noninterference for a number of years acquiesced in, will be approved, unless as thus construed it contravenes some provision of the Constitution, or is clearly wrong." State v. Bryan, 112 Neb. 692, 200 N.W. 870.

5. Where the right to levy certain taxes by the municipal authorities of cities of the metropolitan class is clearly conferred, the power of the municipality, in an appropriate manner, to supply the details necessary for a full exercise of such power must be admitted.

6. The proceedings of the taxing authorities of the city of Omaha embodied in the bill of exceptions in this case, reviewed, and held, strictly consistent with the act of 1905, as the provisions of that act were continued in subsequent legislation and now remain in full force and effect.

7. The foregoing syllabi are equally applicable to, and controlling in, Chicago, St. Paul, Minneapolis & Omaha Railway Company v. Bauman, No. 29939, decided herewith.

Appeal from District Court, Douglas County; Hastings, Judge.

Actions by the Chicago & Northwestern Railway Company (Charles P. Megan, trustee, substituted) and by the Chicago, St. Paul, Minneapolis & Omaha Railway Company against Otto J. Bauman, as county treasurer of Douglas county, Neb., and ex officio treasurer of the city of Omaha, Douglas county, Neb., and the School District of the City of Omaha, Douglas county, Neb., known as School District No. 1, and others. Decrees for defendants, and plaintiffs appeal.

Affirmed.

In construing statute, reviewing court must consider pre-existing law and other acts relating to same subject, since Legislature must be presumed to have had in mind all prior legislation on subject.

Wymer Dressler, R. D. Neely, and H. J. Lutz, all of Omaha, for appellants.

James T. English, Jack W. Marer, and H. C. Linahan, all of Omaha, for appellees.

Heard before GOSS, C. J., GOOD, EBERLY, and CARTER, JJ., and MESSMORE, District Judge.

EBERLY, Justice.

These are companion cases in equity, in which identical issues are involved, and they differ only as to parties and amounts in suit. By stipulation of the parties, these cases were consolidated and heard as one case, upon a common record, though separate decrees were entered. The trial court denied plaintiffs any relief, and dismissed their actions, stating no reasons for his determinations, and plaintiffs have appealed upon a common record.

In this opinion we will consider the case of Chicago & Northwestern Railway Company (Charles P. Megan, Trustee, substituted) v. Otto J. Bauman, County Treasurer, et al., No. 29938.Our discussion here is applicable to case No. 29939, and the conclusion arrived at equally determinative thereof.

The petition before us challenges the correctness and regularity of certain proceedings taken by the city of Omaha in 1932-1933 in connection with the school districts thereof in the assessment, levy and collection of the respective taxes in suit for the benefit of each. The form in which these attacks of plaintiff are cast. as well as the reasons offered in support thereof, are varied and extended. However, analysis discloses that these objections all relate to, and grow out of, a course of official procedure which we infer has continued for a number of years past, and which may be illustrated by the following:

It appears that in August, 1932, the city of Omaha certified to the county clerk of Douglas county tax levies by the mayor and council approved, adopted in that year, and likewise certified certain school levies, approved and adopted by the school district board in 1932, to the same official. Thereafter an order was made and entered by the county board of equalization directing that the taxes so certified should be entered on the tax list of 1933, but computed and extended thereon upon the actual valuation and assessment as returned by the county assessor and as equalized by the county and state boards of equalization for the year 1932. The result of this procedure is that the city and school district taxes were placed on the county tax list of 1933 on the basis of the ownership and valuation as they existed and were shown by the county tax books of 1932, and the county and state levies were entered on this tax list of 1933 on the basis of the valuation and ownership as was determined by the county assessment and valuation of 1933.

Speaking generally, the prayer of the petition is for the recovery of the sum of $11,814.80 city and school district taxes, so placed on the assessment roll of 1933, heretofore paid by the petitioner under protest to the defendant county treasurer; for an injunction restraining further collection of certain city and school district taxes, in addition to those paid under protest, alleged to be thus illegally levied and assessed on plaintiff's property; and also for a mandatory injunction directed to the taxing officers involved requiring the correction of their taxing methods to comply with plaintiff's theory of the law governing that procedure.

As to the recovery by plaintiff of the sum of $11,814.80 alleged to have been unlawfully collected by the defendant county treasurer, the record discloses that this is the aggregate of payment of taxes made by plaintiff " under protest," as provided by section 77-1923, Comp.St.1929. Within thirty days after each payment the plaintiff herein filed with the proper officer a statement in writing, duly verified, setting forth the amount of taxes thus paid under protest, the grounds of such protest, etc. It further appears that thereafter the county board of Douglas county duly inquired into the matter and determined the same against the contention of the plaintiff. Thereupon plaintiff appealed from this decision then made to the district court for Douglas county in the manner provided by law, and caused a proper transcript on appeal to be filed in said court. Then plaintiff filed in said cause a petition for removal of said cause to the district court of the United States in and for the district of Nebraska, Omaha division, and tendered the required bond for such removal. Thereafter said bond was duly approved and an order duly made and entered in each of said causes by that court, adjudging that the cause of action " be and it is hereby removed from the said district court of Douglas county, Nebraska, into the district court of the United States in and for the district of Nebraska, Omaha division." A record of said cause was thereupon made up by the clerk of the district court for Douglas county, and transmitted to, and prior to the commencement of the present action was filed in, said district court of the United States in and for the district of Nebraska, Omaha division, in which court all of said causes of action thus removed are now pending.

These admitted facts invoke the application of the following controlling principles:

(1) The propriety of this removal is unchallenged by the parties to this cause. It has been actually accomplished. Under these circumstances this court does not see fit sua sponte to challenge the rightfulness of the proceeding, or to determine that these causes of action under consideration do not appear to be removable. Rather we will adopt the contrary view, and, for the purposes of this case, will assume but not determine that the causes of action were properly removed. Therefore, we are within the scope of the rule often announced, as stated in Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 244, 245, 25 S.Ct. 251, 253, 49 L.Ed. 462, viz.:

" If a case be a removable one, that is, if the suit, in its nature, be one of which the circuit court could rightfully take jurisdiction, then, upon the filing of a petition for removal, in due time, with a sufficient bond, the case is, in law, removed, and the state court in which it is pending will lose jurisdiction to proceed further, and all subsequent proceedings in that court will be void. New Orleans M. & T. Railroad Co. v. Mississippi, 102 U.S. 135, 141, 26 L.Ed. 96, 98; Baltimore & O. Railroad Co. v. Koontz, 104 U.S. 5, 14, 26 L.Ed. 643, 645; National Steamship Co. v. Tugman, 106 U.S. 118, 122, 1 S.Ct. 58, 27 L.Ed. 87, 89; St. Paul & C. R. Co. v. McLean, 108 U.S. 212, 216, 2 S.Ct. 498, 27 L.Ed. 703, 704; Crehore v. Ohio & M. R. Co., 131 U.S. 240, 243, 9 S.Ct. 692, 33 L.Ed. 144, 145; Kern v. Huidekoper, 103 U.S. 485, 493, 26 L.Ed. 354, 357; Marshall v. Holmes, 141 U.S. 589, 595, 12 S.Ct. 62, 35 L.Ed. 870, 872."

It follows that the...