Hallo v. Helmer
| Decision Date | 15 November 1881 |
| Citation | 10 N.W. 568,12 Neb. 87 |
| Parties | HYMAN HALLO AND ROCELIA PALMER, APPELLEES, v. LOUIS HELMER, TREASURER OF LANCASTER COUNTY, AND CHARLES P. DEWEY, APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL by defendants from a decree rendered in the district court by POUND, J., confirming the report of S. J. Tuttle, referee and perpetually enjoining the defendant treasurer from executing a tax deed to certain property of plaintiffs, etc.
REVERSED.
Burr & Kelly, for appellants.
1. Only one assessor's oath is required. Sec. 12, Chap. 66, Gen Stat., 2. The board had power to raise assessment 20 per cent. Dundy v. Richardson County, 8 Neb. 516. Law of 1875, and the ordinance of city exempting this property, were void. Hurford v. Omaha, 4 Neb. 336. Fletcher v. Oliver, 25 Ark. 289. Clegg v. School District, 8 Neb. 178. Washburn College v. Shawnee County, 8 Kan. 344.
Emil Schultz, for appellee Hallo, and A. L. Palmer, for appellee Rocelia Palmer, (E. E. Brown with them.)
1. Assessment of real property, the assessment roll not having oath of assessor attached, is void. Morrill v. Taylor, 6 Neb. 236. Lynam v. Anderson, 9 Neb. 375. 2. Referees finding is that neither notice was given to plaintiffs, nor was any testimony heard before the board. This made the increased valuation and the assessment and levy based thereon void. Dundy v. Richardson County, 8 Neb. 515 and 516. South Platte Land Co. v. Buffalo County, 7 Neb. 253. Cooley on Taxation, page 541. Sioux City & P. R. R. v. Washington County, 3 Neb. 43. Lammers v. Nissen, 4 Neb. 253. Jones v. Commissioners, 5 Neb. 564. Avery v. East Saginaw, 7 N. W. R., (177). S.C. 44 Mich. 587. 3. The ordinance which appellants contend is void, simply exempted these lots from the payment of these taxes, without increasing anybody elses taxes. The council, by said ordinance simply took the amount of these taxes, and turned them over to the appellee, Hallo, for a good and valid consideration, to-wit: The erection of a "building seventy-five by ninety feet, with a stone foundation and brick super-structure, the upper story of which is to be finished into a hall suitable for a city hall, and to be twenty-two feet between joists, said building to be completed on or before the first day of August, A. D., 1873." This is declared by said ordinance to be a contract between the city of Lincoln and the said H. Hallo. See Laws of 1875, page 319. The city authorities had the power to make such contract. Gen. Stat., page 138, Sec. 6, Subdivision 4. Id., Sec. 31, XII., XXI., XXXIII. See also Cooley on Taxation, 322. Nebraska City v. Gas Company, 9 Neb. 344. Grant v. City of Davenport, 26 Iowa 396.
This action was brought to enjoin the execution of a tax deed to three lots in the city of Lincoln, on the ground of the illegality of the taxes for which they were sold.
In the district court the case was sent to a referee, who found all of the material facts on which the relief was sought in favor of the plaintiffs, and recommended a decree accordingly, which was rendered. Therefore the material inquiry here is whether the facts alleged, and found by the referee, entitle the plaintiffs to the judgment which the court rendered. Referring to the petition, these facts are found to be. 1st. That the assessment was invalid for the reason that the assessor did not take and subscribe an oath, and attach the same to the assessment roll, as required by Sec. 12, Ch. 66, Gen. Statutes. 2d. That the county commissioners, as a board of equalization, without notice to the plaintiffs, increased the valuation of all city property, as returned by the assessor, twenty per cent., as a basis for the levy of taxes for the year 1875. 3d That the assessment for, and the levy of, city taxes for said year were not made until about the 16th of July, whereas they should have been made much earlier. 4th. That a portion of the taxes for which said lots were sold were for city purposes, and it is contended that these were illegal for the reason that they were levied in violation of a certain ordinance of the city, which in terms had exempted said lots from all such taxes from the year 1873 to 1877, inclusive, in consideration of certain private valuable improvements made thereon, which ordinance had been formally ratified and confirmed by an act of the state legislature. If these facts entitled the plaintiffs to the relief prayed, then the judgment of the court below is right and must be affirmed, but otherwise it must be reversed, and the case dismissed for want of equity.
It should be borne in mind that this is an action which must be governed by equitable principles; and the success of the plaintiffs depend upon the bringing of their case within some one of the rules of equitable cognizance. In such an action, a showing which, possibly, might be successful against the holder of a tax deed, in an action for the recovery of the land, may be totally inadequate as a ground for affording affirmative relief of the character here sought.
As to the oath which the statute requires the assessor to attach to his return of property for taxation, and the want of which is made the first ground of complaint, it appears that instead of uniting real and personal property, as the statute evidently contemplates, he kept the two kinds separate, thereby making, nominally, two parts of what should have been in form, as it was in legal effect, but a single assessment roll. To that part containing the list of personal property the required oath was actually attached, but to the other there was none. And this circumstance alone, it is now insisted, renders the assessment, and consequently the levy of taxes as to the realty, absolutely void. But we think this result does not follow. Such a ruling would be much too technical. Without the least doubt the oath which the assessor made and attached to one division of his return was intended by him, as its terms, fairly construed, really import, to apply to his entire assessment for that year, and to cover all of his official duties under the law. This being so, suppose for instance, that it had not been attached to either of the two parts, but instead simply returned with them, and filed in the proper office, would the entire assessment have been vitiated, and the taxes depending thereon uncollectible? In no case, as yet, has this court gone so far as that, and we could not so hold with our present understanding of the law.
It must be conceded that in Morrill v. Taylor, 6 Neb. 236, language is used from which, perhaps, it may be reasonably inferred that this court approved the doctrine that an actual corporeal attachment of the oath to the assessment roll is essential. That was a case in which the purchaser of a lot at tax sale having taken possession thereof, sought to defend it by his tax deed against the delinquent owner, in an action of law for its recovery. On the trial two very important facts stood undisputed--in fact conceded; 1st. That no assessors oath was attached to the assessment returns; and 2d., that the county clerk having made due search could find none in his office, the place where they ought to have been, if ever made, and then in existence. In addition to this search, no effort was made on the trial, nor was there anything in the case tending to show that the required oath had in fact been taken. From such evidence it was a legitimate inference, doubtless, that the assessor had neglected his duty in this particular, and so the court held.
It is apparent from this that the facts upon which that case was decided were quite different from those of the one now before us. In that, according to the evidence, no oath was in fact taken. In this, not only was one taken in due form, but it was returned with, and actually attached to one section or part of the assessment roll. There the court was not called on to decide what would be the effect...
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