Nebraska Mil-Nic, Inc. v. Hall County, MIL-NI

• Decision Date: 07 January 1972
• Docket Number: INC,No. 37983,MIL-NI,37983
• Parties: NEBRASKA, a Corporation, Appellant, v. HALL COUNTY, Nebraska et al., Appellees, and City of Grand Island, Nebraska and School District of Grand Island, Nebraska, Interveners-Appellees.
• Court: Nebraska Supreme Court

Page 450

193 N.W.2d 450

187 Neb. 656

NEBRASKA MIL-NIC, INC., a Corporation, Appellant, v. HALL COUNTY, Nebraska et al., Appellees, and City of Grand Island, Nebraska and School District of Grand Island, Nebraska, Interveners-Appellees.

No. 37983.

Supreme Court of Nebraska.

Jan. 7, 1972.

Syllabus by the Court

1. Section 18--1717, R.R.S.1943, enacted with the emergency clause on April 29, 1967, provides for a 1-year limitation period in which a party may contest any annexation or contest any act done prior to April 29, 1967, pursuant to such annexation, which annexation was made pursuant to any statute of this state which has been, on April 29, 1967, declared to be unconstitutional.

2. A special statute of limitations, where applicable, controls over a general statute of limitations because the special statute is the one that more properly expresses the legislative will.

E. Merle McDermott, Grand Island, for appellant.

Sam Grimminger, County Atty., Gerald Buechler, Grand Island, for appellees.

Kenneth H. Elson, James D. Livingston, Duane A. Burns, Walter Lauritsen, Grand Island, for interveners-appellees.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

WHITE, Chief Justice.

This is an action for the refund of real and personal property taxes. Plaintiff alleges that its property was purportedly annexed to the City of Grand Island on November 20, 1963, by virtue of Ordinance No. 4075. On March 15, 1968, the district court for Hall County in a case entitled Pokorski v. City of Grand Island (following our decision in Williams v. County of Buffalo, 181 Neb. 233, 147 N.W.2d 776), adjudged Ordinance No. 4075 to be unconstitutional and void, and the taxes levied by the city and School District No. 2 were therefore void. Plaintiff, relying on this ruling, prays for a refund of taxes for the years 1964, 1965, and 1966, a sum in excess of $30,000. This action was commenced on November 13, 1969, by the filing of a claim with the Hall County Treasurer and Board of Supervisors, pursuant to section 77--1736.04, R.S.Supp., 1967, the general tax refund statute. The County Board denied the refund and an appeal was taken to the district court. The district court dismissed the action, holding that it was barred by the statute of limitations. We affirm the judgment of the district court.

Section 77--1736.04, R.S.Supp., 1967, provides in part: 'If, by judgment or final order of any court of competent jurisdiction in this state, in an action not pending on appeal or error, it has been or shall be adjudged and determined that any personal property or real estate tax, assessment, or penalty or any part thereof, was illegal and such judgment or order has not been made or shall not be made in time to prevent the collection or payment of such tax, assessment, or penalty, then such tax, assessment, or penalty, whether expended or not, which has been collected pursuant to such illegal tax, assessment or penalty for the year such tax, assessment or penalty is determined to be illegal shall be repaid and refunded in the county where originally paid to the person paying such tax, assessment, or penalty. * * * If the tax, assessment, or penalty has been distributed by the collecting officer, then the person claiming a refund, or the agent or authorized representative of such person, shall file a claim with the county treasurer for such refund within two years after the final judgment is entered declaring such tax, assessment, or penalty as illegal.'

Plaintiff contends that the tax was adjudged void in the Pokorski case which was decided March 15, 1968, and that he has commenced his action for the refund within 2 years of that date and hence within the statutory period.

The defendants contend that the applicable statute of limitations is section 18--1717, R.R.S.1943, and that under its terms this action is barred because it was not commenced within 1 year from April 29, 1967. The statute provides: 'Any party affected by any annexation of property made by any...