City of Omaha v. City of South Omaha

• Decision Date: 17 February 1891
• Citation: 47 N.W. 1113,31 Neb. 378
• Parties: CITY OF OMAHA v. CITY OF SOUTH OMAHA
• Court: Nebraska Supreme Court

47 N.W. 1113

31 Neb. 378

CITY OF OMAHA v. CITY OF SOUTH OMAHA

Supreme Court of Nebraska

February 17, 1891

ORIGINAL application for injunction.

Injunction denied and action DISMISSED.

A. J Poppleton, for plaintiff.

J. C Cowin, and J. W. Edgerton, contra.

OPINION

MAXWELL, J.

This is an original action brought in this court to enjoin the city of South Omaha and the treasurer thereof from collecting taxes upon certain real estate described in the petition, and from exercising any jurisdiction over said premises so described, because such exercise of jurisdiction is in excess of its corporate power.

The plaintiff alleges in its petition that "the city of Omaha is a city of the metropolitan class, duly incorporated and organized under an act of the legislature of the state of Nebraska entitled 'An act incorporating metropolitan cities, and defining, regulating, and prescribing their duties, powers, and government,' approved March 30, 1887 and also an act amendatory thereof passed and approved March 16, 1889,

"That the city of South Omaha is a city organized and existing under the laws of the state of Nebraska, providing for the organization of cities of the second class; that Thomas Hoctor is the treasurer and collector of the city of South Omaha, duly elected, commissioned, and qualified, and authorized to exercise the duties and powers of such officer within the limits of South Omaha.

"That the following described premises, claimed by the defendant, the city of South Omaha, to be situated within its boundaries and jurisdiction, are in truth and in fact situated within the boundaries and jurisdiction of the city of Omaha, plaintiff.

"That in assessment of the real estate situated within the boundaries and subject to the jurisdiction of the city of Omaha for the city taxes of said city for the year 1890 said premises were wholly omitted from said tax list.

"That, subsequently, by order of the city council of the city of Omaha, given the city treasurer of the city of Omaha, by concurrent resolution of said city council, duly passed and approved by the mayor of said city, said treasurer of the city of Omaha was ordered and directed, in pursuance of the charter of said city of Omaha granting and conferring such power and imposing such duty, to place upon the tax list of the city of Omaha for the year 1890 said premises, at a valuation corresponding to other real estate in the immediate vicinity of said premises, and to collect said taxes for the year 1890 as in other cases, and that in pursuance of such order and direction of the city council of the city of Omaha the treasurer of said city will cause said premises to be entered upon the city tax list for said year, and assess a tax in accordance with the direction of said city council.

"And plaintiff claims that said premises are subject to the jurisdiction of the city of Omaha, plaintiff, both for taxation and revenue and for judicial and executive purposes, and that notwithstanding said city of South Omaha claims jurisdiction over said premises, it is without such jurisdiction of any character whatever, and that the same is under the exclusive jurisdiction of the city of Omaha, plaintiff. The premises hereinbefore referred to are described at length and in detail as following--(describing property).

"That under and by virtue of section 3 of the act first hereinbefore referred to the plaintiff city was authorized and empowered by ordinance, within one year after the passage of said act or within one year after being proclaimed by the governor of the state of Nebraska a city of the metropolitan class, to include an area not to exceed twenty-five square miles, including any township or village organization within such limits, which organization should thereupon cease and terminate, and that thereafter the said city should possess and exercise exclusive jurisdiction for all purposes over the said premises included in said twenty-five square miles.

"That in pursuance of said power and authority, and within the time limited thereby, the city of Omaha, plaintiff, did, by ordinance duly passed and approved, include within its boundaries (said boundaries not exceeding twenty-five square miles) the premises hereinbefore described, and that said premises were situated, at the time of the passage of said ordinance so extending said boundaries as aforesaid, within the limits of the township or village organization then existing and known as the city of South Omaha.

"That said ordinance was passed and approved on the 9th day of April, 1887, and that the organization of the city of South Omaha as a township or village was at that time in full and complete existence and was not terminated until December 13 1887, by means whereof the said premises became on the said 9th day of April, 1887, and thenceforward have ever since continued to be, a part and parcel of said plaintiff city, included within its boundaries and wholly and exclusively subject to its jurisdiction, and that since said date said...