State v. Several Parcels of Land

• Decision Date: 04 April 1907
• Citation: 78 Neb. 703,111 N.W. 601
• Parties: STATE v. SEVERAL PARCELS OF LAND.
• Court: Nebraska Supreme Court

78 Neb. 703

111 N.W. 601

STATE

v.SEVERAL PARCELS OF LAND.

Supreme Court of Nebraska.

April 4, 1907.

Syllabus by the Court.

In legal contemplation, an unconstitutional statute is as inoperative as though never passed, conferring no right, imposing no duty, and affording no protection.

An annexation ordinance, adopted in pursuance of an unconstitutional statute, and without lawful authority, is ineffectual to extend the corporate limits of a municipality.

Ordinarily the validity of such ordinance may be collaterally impeached in a proceeding brought to enforce a city tax levied against real estate in the annexed territory.

Such tax is one levied for an “unauthorized purpose,” within the meaning of section 15 of the Scavenger act (Article 9, c. 77, Comp. St. 1905), and may be adjudged void in a proceeding brought under the act.

Commissioners' Opinion. Department No. 2. Appeal from District Court, Cass County; Jessen, Judge.

Action by the state against several parcels of land owned by Herman B. Burgess. Judgment for the state, and Burgess appeals. Reversed and remanded.A. L. Tidd and Matthew Gering, for appellant.

C. A. Rawls and H. D. Travis, for the State.

ALBERT, C.

Since 1882, Herman Burgess, whom we shall call the defendant, has been the owner of a tract of land containing about 12 acres, lying near the original corporate limits of the city of Plattsmouth. It has never been plated or subdivided into lots, and has been used exclusively for agricultural purposes. In 1888 the city, in pursuance of the provisions of chapter 14, p. 148, Laws 1885, entitled “An act to amend the title and sections 1, 2, 3 and 4 of an act entitled ‘An act to provide for the organization, government, and powers of cities of the second class having more than 10,000 inhabitants,’ approved March 1st, 1883,” undertook merely by the passage of an ordinance to extend its corporate limits to include the defendant's land. Ever since the adoption of the said ordinance, down to and including the year 1903, taxes for general city purposes were levied against this land. The taxes thus levied were paid by the defendant from year to year, until 1894; but, according to his uncontradicted testimony, such payments were made under protest, and since that year he has paid no taxes levied against the property for city purposes. A proceeding under what is commonly known as the “Scavenger Act,” instituted in 1904 to enforce the payment of the unpaid city tax levied against the defendant's property, was resisted by the defendant on the ground that the annexation ordinance was invalid and ineffectual to bring the land within the corporate limits of the city, and, consequently, that the taxes levied against the land for city purposes were levied without authority and void. The court entered a decree for the enforcement of the taxes against the land, and the defendant appealed.

The amendatory act of 1885 was declared unconstitutional in Webster v. City of Hastings, 59 Neb. 563, 81 N. W. 510. The general rule is that an unconstitutional statute is invalid from its inception, and as ineffectual as though it had never passed. Boales v. Ferguson, 55 Neb. 565, 76 N. W. 18;Finders v. Bodle, 58 Neb. 57, 78 N. W. 480. As was said in Norton v. Shelby County, 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178: “It confers no right. It imposes no duty. It affords no protection. It is, in legal contemplation, as inoperative as though it had never passed.” It would follow then, that the amendatory act of 1885, under which the city attempted to extend its limits by ordinance so as to include defendant's land, conferred no authority to annex adjacent territory by ordinance, and, as there was no valid law then in force conferring such authority, that the attempted annexation was unauthorized. As was said in C., B. & Q. R. Co. v. City of Nebraska City, 53 Neb. 453, 73 N. W. 952: “It is a familiar doctrine that municipal corporations can exercise only such powers as are conferred by law, either express or implied. Where the statute points out the mode of procedure for the extension of the boundaries of a city, the same must be substantially followed, else it will be of no validity.” There, as in this case, the validity of a city tax levied against certain property, over which the city has attempted to extend its jurisdiction, was assailed on the ground that the annexation proceedings were unauthorized. The court held, that...