State, ex rel. Hinson v. Nickerson

• Decision Date: 04 March 1916
• Docket Number: 18552
• Citation: 156 N.W. 1039,99 Neb. 517
• Parties: STATE, EX REL. T. N. HINSON, APPELLEE, v. JOHN T. NICKERSON, APPELLANT
• Court: Nebraska Supreme Court

156 N.W. 1039

99 Neb. 517

STATE, EX REL. T. N. HINSON, APPELLEE, v. JOHN T. NICKERSON, APPELLANT

No. 18552

Supreme Court of Nebraska

March 4, 1916

APPEAL from the district court for Furnas county: ERNEST B. PERRY JUDGE. Reversed and dismissed.

Judgment of the district court reversed and action dismissed.

Lambe & Butler and J. F. Fults, for appellant.

J. B Smith and John Stevens, contra.

SEDGWICK J. ROSE, J., dissents.

OPINION

SEDGWICK, J.

This is an action in mandamus brought by relator as a citizen and taxpayer of Beaver City, in the district court for Furnas county, against respondent, county clerk of that county, to compel respondent to enter on the tax list the property of B. F. Seibert and others, so that said property may be held subject to the tax levied for city purposes by the city of Beaver City for the year 1913. A peremptory writ was issued, and respondent has appealed.

On and prior to April 1, 1913, the property herein sought to be subjected to the city tax was within the corporate limits of the city, and was duly listed and assessed for taxes for that year by the assessor of Beaver City. July 1 following Seibert and the other property owners procured a judgment and decree of the district court detaching their real estate from the city. This decree was not appealed from and is in full force and effect. Taxes were assessed and levied for city purposes for the year 1913, but the county clerk refused to extend the levy and assessment against the property covered by this decree.

Property "within the city" can be taxed for city purposes. This property was "within the city" until July 1. After that time it was not within the city. The question is, then: When was it "taxed?" Is the property taxed when the assessor lists it and it is valued for taxation, or is it taxed when the levy is made? The levy was made by the county board about 10 days after the property was put out of the city.

An exactly similar case has been decided by the supreme court of Utah, Gillmor v. Dale, 27 Utah 372, 75 P. 932. The syllabus shows how exactly like our statute theirs is. It is as follows: "Revised Statutes 1898 sec. 2516, provides that the assessor must before the first Monday in May assess all property subject to taxation; and sections 2595, 2596, and 2597 declare that every tax has the effect of a judgment, and every lien the force and effect of an execution, and that every tax upon real property is a lien against the property assessed. Section 206, subd. 3, authorizes city councils to levy and collect taxes on real and personal property as provided by law, and Const., art. XIII, sec. 10, provides that all corporations or persons shall be subject to taxation within the territorial limits of the authority levying the tax. By Revised Statutes 1898, secs. 253 and 2689, city councils are required, on or before the first Monday in July, to fix the rate of taxes, and levy the same on property within the city; and by section 2694 the tax so levied...