Gamboni v. Otoe County

• Decision Date: 10 December 1954
• Docket Number: No. 33592,33592
• Parties: C.A. GAMBONI et al., Appellees, v. The COUNTY OF OTOE in the State of NEBRASKA et al., Appellants.
• Court: Nebraska Supreme Court

Page 489

67 N.W.2d 489

159 Neb. 417

C.A. GAMBONI et al., Appellees, v. The COUNTY OF OTOE in the State of NEBRASKA et al., Appellants.

No. 33592.

Supreme Court of Nebraska.

Dec. 10, 1954.

Syllabus by the Court

1. Unless prohibited by statute, a county board may adopt such means to assist county officers to properly discharge the duties of their offices as in its judgment it shall deem necessary.

2. A suit in equity will not lie when the plaintiff has a plain, adequate, and speedy remedy at law.

3. An adequate remedy at law means a remedy which is plain and complete and as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.

4. If a tax or assessment is levied without authority of law, it is void.

5. When taxes are levied on property without authority of law a court of equity may enjoin collection thereof.

6. The provision of section 77-1315, R.R.S.1943, requiring notice to the landowner of any increase in assessed value of his realty over the last previous assessment is mandatory. A tax levied on such increase, made without notice to the owner, is void.

7. What has been said of the notice required by section 77-1315, R.R.S.1943, being mandatory is equally applicable to what the Legislature has said shall be contained therein.

8. The notice to an owner of property, provided for in section 77-1315, R.R.S.1943, is not required in cases where real estate is assessed under the provisions of section 77-1306, R.R.S.1943.

9. The valuation of property made by the proper assessing officer is presumed to be correct.

10. The presumption is that, when an officer of assessing body values property for assessment purposes, he acts fairly and impartially in fixing such valuation.

11. Where the assessor does not make a personal inspection of the properties, either by himself or a deputy, but accepts the valuations thereof fixed by a professional appraiser the presumption in favor of the assessment does not obtain. However, the burden in such case is still upon the protesting party to prove the assessment is excessive.

12. The presumption obtains that a board of equalization has faithfully performed its official duties, and that in making an assessment it acted upon sufficient competent evidence to justify its action.

13. The statute affords a plain, adequate, and speedy remedy to one whose property has been excessively valued for taxation and in cases in which the county board of equalization has committed prejudicial errors or irregularities in procedure.

14. It is the practice in this state to allow the recovery of attorney's fees and expenses only in such cases as are provided for by statute, or where the uniform course of procedure has been to allow such recovery.

15. Where one has gone into a court of equity, and, taking the risk of litigation on himself, has created or preserved or protected a fund in which others are entitled to share, such others will be required to contribute their share to the reasonable costs and expenses of the litigation, including reasonable fees to the litigant's counsel.

16. This rule is based on the theory that all in a class benefited should contribute to the expense, their share thus being necessarily entirely dependent upon the success of the litigation.

Otto H. Wellensiek, Co. Atty., Robert L. Morrissey, Deputy Co. Atty., Syracuse, Clarence S. Beck, Atty. Gen., Chauncey C. Sheldon, Asst. Atty. Gen., for appellansts.

Moran & James, T. Simpson Morton, John J. Mattox, Tyler & Frerichs and Betty Peterson Sharp, Nebraska City, for appellees.

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

WENKE, Justice.

This is an appeal from the district court for Otoe County. The action was brought by five named plaintiffs, each the owner of real estate situated in one of the two cities located in Otoe County, Nebraska. It was brought by them on their own behalf and on behalf of all other real property owners in the cities and villages located in Otoe County who are similarly situated. The basis of their complaint is that the officials of Otoe County increased the assessed value of their properties in 1952 over what it was in 1951 without complying with the statutory and constitutional requirements authorizing them to do so. The purpose of the action is to enjoin, for the year 1952, the assessment of plaintiffs' real properties and the real properties of all other parties similarly situated to the extent the assessed values thereof were increased over the 1951 assessed valuations; to enjoin the levy to taxes on said properties to the extent that the same are based on such increases; and to enjoin the collection of taxes thereon to the extent such taxes are based upon such increases. Actions of this character are authorized by section 25-319, R.R.S.1943.

The trial court enjoined the collection of any taxes on any real estate of the plaintiffs, or of other real property owners similarly situated, for the year 1952 that was occasioned by any increase in the assessed valuation of their properties over what it had been for the preceding year except such increases as were occasioned by the assessment of new improvements not previously assessed. This was done on the basis that the increased assessments were void.

Previous to trial, and while the action was pending, the following order was entered on November 24, 1952: '* * * Henry E. Schemmel, County Treasurer of Otoe County, Nebraska, is hereby directed and commanded to separately audit the payments of taxes made by the plaintiffs and other persons similarly situated so as to reflect the amount of taxes occasioned by any increase in valuation subsequent to the year of 1951, and the said County Treasurer, defendant, is hereby further ordered and commanded to record all of said tax payments as being made under protest, and to separately deposit and hold any such increased amount in trust and to maintain a trust account thereof, not to be distributed, until the final order, judgment and decree entered herein.'

The county treasurer kept the money held by him pursuant to this order in a separate fund. The court ordered the county treasurer to deduct from this fund any amounts paid and placed therein that resulted from increased assessments based on new improvements not previously assessed. From the balance of the fund the court ordered the county treasurer to pay plaintiffs' attorneys the sum of $7,500, which amount it allowed them for services herein. It then directed the balance of the fund to be distributed to the respective taxpayers from whom it was collected in proportion to their respective interests therein. Motion for new trial having been made and overruled, this appeal was taken by the defendants.

The general background out of which this litigation had its inception is as follows: In the forepart of 1951 the board of county commissioners of Otoe County, hereinafter referred to as the county board, established a real estate classification and reappraisal committee. Authority for the county board to establish such a committee is provided by section 77-1301, R.R.S.1943. On June 14, 1951, this committee reported to the county board that on May 1, 1951, it had received bids on the reappraisal work of the county and recommended the county board approve the bid it had received from the J. M. Cleminshaw Appraisal Company so the committee could enter into a contract with the bidder for the immediate appraisal of town properties. This bid contained an option giving the company the right to appraise the rural property in the following fiscal year for an amount therein stated. On the same day the county board rejected these recommendations and discontinued the committee. The committee members were not notified of this action, and of the fact that they had been relieved of further duty, until June 21, 1951. In the meantime, on June 16, 1951, they filed a report with the county board to the effect: 'Your committee has examined the valuation placed on various real estate in the county for the purpose of taxation. Your committee has further viewed the real estate and the improvements thereon to determine whether or not these various tracts are valued on an equitable basis. We find from our examination great inequality and inequities in the valuation placed on the various tracts. In many instances property of equal value is assessed unequally and in other instances property which varies greatly in value is assessed as having the same value for tax purposes. Therefore, many taxpayers are paying more taxes than they should and others are not paying as much. In view of this fact we feel that the lands and town lots of the county should be reappraised.'

Thereafter, on July 17, 1951, the county board took the following action: '* * * the recommendation of the Otoe County Reappraisal Committee employ the J. M. Cleminshaw Co., of Cleveland, Ohio to reappraise the lots and buildings in the towns and cities of Otoe County be accepted. The County Clerk is instructed to contract the J. M. Cleminshaw Co. at once so that the work can be started on the reappraisal. Also it is the ententions (intention) of the County Board that a reappraisal of farm lands be undertaken in the future.'

Pursuant to the foregoing the county board, on August 11, 1951, took the following action: '* * * that the J. M. Cleminshaw Co. be employed to make a reappraisal of all town and city property in Otoe County, Nebraska, for the sum of $15,500.00. This company was recommended by the Otoe County Reappraisal Board.'

The contract entered into pursuant thereto provided: 'The J. M. Cleminshaw Company, a Partnership, hereby proposes by way of assistance to the Assessor to make a complete revaluation of all taxable real property within the corporate limits of the City of Nebraska City and all cities and villages of Otoe County including Burr, Douglas, Dunbar, Lorton, Otoe, Palmyra,...