State ex rel. Young v. Osborn

• Court: Nebraska Supreme Court
• Writing for the Court: NORVAL, C. J.
• Citation: State ex rel. Young v. Osborn, 60 Neb. 415, 83 N.W. 357 (Neb. 1900)
• Decision Date: 12 July 1900
• Docket Number: 11,436
• Parties: STATE OF NEBRASKA, EX REL. FRANK H. YOUNG, APPELLANT, v. WILLIAM H. OSBORN, ASSESSOR, APPELLEE

83 N.W. 357

60 Neb. 415

STATE OF NEBRASKA, EX REL. FRANK H. YOUNG, APPELLANT, v. WILLIAM H. OSBORN, ASSESSOR, APPELLEE

No. 11,436

Supreme Court of Nebraska

July 12, 1900

APPEAL from the district court of Custer county. Heard below before SULLIVAN, J. Affirmed.

AFFIRMED.

O'Neill & Gilbert, for relator.

James Ledwich, L. E. Kirkpatrick and C. L. Gutterson, contra.

OPINION

NORVAL, C. J.

This was an application by Frank H. Young, as receiver of Broken Bow Water Works Company, to the district court of Custer county for a peremptory mandamus to compel the respondent, as assessor of the city of Broken Bow, to assess the property in said city at its fair cash value.

The information charges that in an action pending in the circuit court of the United States in and for the district of Nebraska, wherein the executors of the estate of Denis C. Gately, deceased, and others were plaintiffs and the Broken Bow Water Works Company was defendant, Frank H. Young the relator herein, was appointed by said court the receiver of said company; that he duly qualified as such, entered upon the discharge of said trust and as such receiver is in full and undisputed possession of all the property, rights and franchises of said Broken Bow Water Works Company; that relator has been duly authorized by said circuit court to commence and maintain this action; that William H. Osborn the respondent, is the elected, qualified and acting assessor of the city of Broken Bow, and as such is pretending to perform the duties required of him by law.

The information further avers: "That heretofore, to-wit:--on the 23rd day of April, A. D. 1888, the city of Broken Bow, Custer county, Nebraska, by its mayor and city council duly authorized for the purpose, entered into a contract with the Broken Bow Water Works Company, which contract is embodied and contained in an ordinance of the said city, known as ordinance seventy-six, of the compiled and published ordinances of the said city, which said ordinance was duly and legally passed and adopted on the said 23rd day of April, A. D. 1888, which said ordinance your relator prays may be taken as a part of this petition.

"Your relator further shows unto the court that it is provided by section six of the said ordinance, as follows: 'And a sufficient tax, not to exceed seven mills on the dollar, shall be levied and collected annually upon all taxable property upon the assessment roll of said city, to meet the payments under this ordinance, when and as they shall respectively mature during the existence of any contract for hydrant rentals, and shall be levied and kept as a special fund known as the "Water Fund," and shall be irrevocably and exclusively devoted to the payment of hydrant rentals under this ordinance, and shall not be otherwise employed.'

"Your relator further shows unto the court that the revenues of the said Water Works Company growing out of the matter of hydrant rentals under the provisions of the said ordinance is one of the material and principal sources of revenues of the said Water Works Company, and under the provisions of the said contract your relator, as the receiver of the said Water Works Company, is entitled to receive from the said city the proceeds of a tax of seven mills levied upon all the taxable property in the said city, when properly and legally assessed as required by the laws of the state of Nebraska governing assessments.

"Your relator further shows to the court that the respondent William H. Osborn, regardless of and in violation of his duties as such assessor of the city of Broken Bow, has entered into an agreement and understanding with the other assessors of Custer county, Nebraska, that he will not return the property of said city at its fair cash value as required by law, but that after determining the fair cash value of the said property he will enter the same upon the assessment roll of said city and return the same to the county clerk of Custer county, Nebraska, at one-fourth of the fair cash value of the said property, as the same has been found and determined by him, and pursuant to said agreement and understanding the said respondent has determined the fair cash value of the property in the said city, and regardless of his duties and obligations and the requirements of law in that regard he has entered the same upon the assessment book for the said city at one-fourth the true value thereof, as found and determined by him.

"Your relator further shows that the said action of the said assessor works a great and irreparable injury and damage to your relator and your relator is without an adequate remedy at law in the premises, and a tax of seven mills on the dollar of the taxable property of said city at its fair value is requisite and necessary to meet the amount due your relator under said contract."

The respondent demurred to the information because it did not state facts sufficient to constitute a cause of action, and also for defect of parties defendant. Both grounds of the demurrer were sustained, and relator electing to stand on his pleading, the action was dismissed.

The learned district court erred in ruling that there was a defect of parties. The proceeding was against the respondent to enforce the performance of an official duty, which he, and he alone, could lawfully discharge. That the proposed action sought to be coerced would probably affect the interests of the taxpayers of the city of Broken Bow is no reason why such taxpayers should be made parties to this proceeding. After the assessment is made, if they are dissatisfied, they can seek relief before the board of equalization. Suppose a county treasurer should refuse to perform some official duty enjoined upon him by law, a taxpayer of the county could invoke relief by mandamus, but it would not be necessary for the relator to make the other taxpayers of the...