Custer County v. Chicago, B. & Q.R. Co.
| Decision Date | 01 October 1901 |
| Docket Number | 10,116 |
| Citation | 87 N.W. 341,62 Neb. 657 |
| Parties | COUNTY OF CUSTER v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court for Custer county. Heard below before GRIMES, J. Affirmed.
AFFIRMED.
J. R Dean, for plaintiff in error.
J. W Deweese, Nathan K. Griggs, John S. Kirkpatrick and Frank E Bishop, contra.
ALBERT, C. AMES and DUFFIE, CC., concur. SULLIVAN, J., absent, not voting.
This action was brought in the district court by the Chicago, Burlington & Quincy Railroad Company, plaintiff, against Custer county, defendant, to recover taxes paid by the plaintiff under what is claimed to have been an illegal levy. A trial to the court, without a jury, resulted in a finding and judgment for the plaintiff. The defendant brings the case here on error.
The petition sets forth three causes of action, but, as plaintiff's right to recover on the first and second is conceded, the third alone concerns us at this time.
The tax in question was levied in 1895, at which time there was levied for ordinary county revenue nine mills, and, in addition thereto, among other items, four and one-half mills for the payment of judgments against the county. The plaintiff paid its share of the four and one-half mill levy under protest, and, within due time, demanded its return. On defendant's failure to comply with such demand, the plaintiff brought this action assailing the validity of the four and one-half mill levy, on the ground that no judgments existed against the county at the time of the levy, and for that reason it was unauthorized and illegal.
The first assignment of error relied on by the defendant is that the court erred in overruling its objection to the introduction of any testimony. This assignment is based on the alleged insufficiency of plaintiff's protest and demand. In support of its position the defendant cites City of Omaha v. Kountze, 25 Neb. 60, 40 N.W. 597. The case cited is not in point. It was brought under section 1 of chapter 12 of the Laws of 1883, which provides for the recovery of special taxes levied by cities of the first class, and provides in specific terms that "no court shall entertain any complaint * * * not specified in said notice fully enough to advise the city of the exact nature thereof," and relates entirely to cities of the first class. The procedure for the recovery of illegal taxes from a county is regulated by section 144, article 1, chapter 77, of the Compiled Statutes, which specifies two classes of cases. The first includes cases where the property on which the tax was levied was not liable to taxation or had been twice assessed in the same year, and taxes paid thereon; the second, where the taxes are levied for an illegal or unauthorized purpose, or for any other reason are invalid. Under the second, no protest is required, but the party paying the tax is required, within thirty days after payment, to demand the same in writing from the treasurer of the county, and, if the taxes are not refunded in ninety days, the party may bring his action against the county therefor. The case at bar falls within the second class and no formal protest was required. The demand was in writing and covers almost a page of closely written matter. It is amply sufficient to inform the defendant of the taxes referred to, that they had been paid by the plaintiff, the ground upon which plaintiff claimed they were invalid and contained a demand for their return. Such a demand is sufficient under the statute.
The other assignments search the entire record, and squarely present the question whether the taxes levied for the payment of judgments against the county were valid. The authority of the county board to levy a special tax for the payment of judgments is to be found in sections 1 and 2 of article 6 of the chapter just referred to, and which, so far as are material at present, are as follows:
From the sections just quoted it is clear, we think, that the existence of judgments against the county at the time of the levy is a condition precedent to a valid exercise of the power by the county board to levy a tax for the payment of judgments. Hence, the question presented is, whether at the time of the levy complained of there were any judgments in existence against the county. But one judgment is claimed to have existed in the district court against the county at that time. The record introduced in evidence to establish the fact of the existence of such judgment is as follows: "On this 3d day of December, 1892, this cause came on to be heard and the defendant by its attorney in open court confesses judgment in favor of the plaintiff for the sum of $ 1,522.29." This confession is followed by no adjudication of the court, and we do not think it will be seriously urged that, standing alone, it constitutes judgment, so we may dismiss it from further consideration. The other judgments relied upon to support the levy were rendered in the county court upon the voluntary appearance and confession of the county attorney, whose...
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Custer Cnty. v. Chi., B. & Q. R. Co.
...62 Neb. 65787 N.W. 341CUSTER COUNTYv.CHICAGO, B. & Q. R. CO.Supreme Court of Nebraska.Oct. 1, 1901 ... Syllabus by the Court.1. Under ... A county attorney has no authority to enter a voluntary appearance in court, and confess judgment against ... ...