Sinclair v. City of Lincoln

• Decision Date: 14 April 1917
• Docket Number: 19405
• Citation: 162 N.W. 488,101 Neb. 163
• Parties: THOMAS SINCLAIR, APPELLANT, v. CITY OF LINCOLN ET AL., APPELLEES
• Court: Nebraska Supreme Court

162 N.W. 488

101 Neb. 163

THOMAS SINCLAIR, APPELLANT, v. CITY OF LINCOLN ET AL., APPELLEES

No. 19405

Supreme Court of Nebraska

April 14, 1917

APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Affirmed.

AFFIRMED.

F. B Baylor and D. J. Flaherty, for appellant.

C Petrus Peterson, George W. Berge, Charles R. Wilke and Sterling F. Mutz, contra.

OPINION

SEDGWICK, J.

The authorities of the city of Lincoln levied a tax upon the property of the city to raise money to purchase real estate adjoining the university campus for the purpose of the extension of that campus. The plaintiff brought this action in the district court for Lancaster county in behalf of himself and other taxpayers of the city similarly situated to enjoin the collection of the tax. The district court found no equity in the petition and dismissed the case at plaintiff's costs. The plaintiff has appealed.

In 1913 the legislature amended the statute which confers power upon the city to levy taxes, and added the following as additional purposes for which such taxes might be levied by the city: "The council shall have the power to levy and collect a tax not to exceed five mills in addition to the tax hereinbefore authorized for the purpose of purchasing, holding and improving public grounds and parks, park extensions and improvements, and university campus extension." Laws 1913, ch. 5, sec. 3 (Rev. St. 1913, sec. 4546). The Constitution of the state provides: "The legislature may vest the corporate authorities of cities, towns and villages, with power to make local improvements by special assessments, or by special taxation of property benefited. For all other corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes, but such taxes shall be uniform in respect to persons and property within the jurisdiction of the body imposing the same." Article IX, sec. 6. Section 4 of the same article provides: "The legislature shall have no power to release or discharge any county, city, township, town or district whatever, or the inhabitants thereof, or any corporation, or the property therein, from their or its proportionate share of taxes to be levied for state purposes, or due any municipal corporation, nor shall commutation for such taxes be authorized in any form whatever."

It is contended that the legislative act attempting to give the city power to levy taxes for "university campus extension" is violative of these provisions of the Constitution. The argument is that the university is a state institution, and that it must be supported by the state at large, and that to place a larger part of this burden upon the city of Lincoln in effect releases other portions of the state from their "proportionate share of taxes to be levied for state purposes," and therefore violates section 4, above quoted. By section 6, above quoted, the corporate authorities of cities may be authorized by statute to assess and collect taxes for all "corporate purposes," so that the question is whether this tax so levied by the city was for corporate purposes. The petition in this case alleged that when this action was begun a general election was about to be held in the state of Nebraska to determine whether the university except the college of medicine, should be removed to the state farm, or the colleges of the university generally should be located "on the present city campus and on land contiguous thereto," and "that all of the buildings of the university of Nebraska, except the college of agriculture, are now located" upon the present city campus, and that the levy in question "is for the purpose of purchasing ground to the east of said location and extending said grounds." It appears that the object of levying this tax was to, in effect, donate this money to the state for the university for the purpose of inducing the state to continue the location of the university at its present site in the city of Lincoln, rather than to remove it to the state agricultural farm, which is about two and one-half miles east of the present location and is just without the limits of the city of Lincoln. Is this a corporate purpose? Can the legislature authorize the city to donate money for the purpose of retaining the university within the city and at such point therein as shall be found to be most...