State v. Several Parcels of Land

• Decision Date: 09 November 1907
• Docket Number: 14,747
• Citation: 113 N.W. 810,80 Neb. 11
• Parties: STATE OF NEBRASKA, APPELLEE, v. SEVERAL PARCELS OF LAND ET AL., APPELLANTS
• Court: Nebraska Supreme Court

113 N.W. 810

80 Neb. 11

STATE OF NEBRASKA, APPELLEE, v. SEVERAL PARCELS OF LAND ET AL., APPELLANTS

No. 14,747

Supreme Court of Nebraska

November 9, 1907

APPEAL from the district court for Cass county: PAUL JESSEN, JUDGE. Former judgment of reversal vacated and judgment of district court affirmed.

Affirmed.

A. L Tidd, W. C. Ramsey and Matthew Gering, for appellants.

C. A Rawls and H. D. Travis, contra.

OPINION

LETTON, J.

The facts are stated in the first opinion by Mr. Commissioner ALBERT, 78 Neb. 703, 111 N.W. 601. In that opinion it is said: "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, the attempted annexation was unauthorized," and the conclusion is largely based upon this premise. On rehearing our attention has been called to the fact that at the time the annexation ordinance was passed the act of March 2, 1881 (laws 1881; ch 23), was in force, providing for the annexation of property contiguous to the corporate limits of cities such as Plattsmouth. This act provides in substance that, whenever the owner or owners and inhabitants, or a majority thereof in numbers or value, of any territory lying contiguous to the corporate limits of any city or village, whether the territory be subdivided or remains unsubdivided, desire to annex the territory to any city, they shall cause an accurate plat to be filed in the office of the city clerk, with a written request for the annexation. The city council at the next regular meeting shall vote upon the question of annexation, and if a majority vote for annexation an ordinance shall be prepared and passed declaring the annexation, and a certified map and copy of the ordinance shall be filed and recorded in the office of the county clerk or recorder of the county. Thereupon the annexation shall be deemed complete. The power to act, therefore, was granted to the city authorities and existed at the time of the passage of the ordinance of annexation. The ordinance recited that it was passed by virtue of an act passed in 1885, which act was void. City of Plattsmouth v. Murphy, 74 Neb. 749, 105 N.W. 293. But the mistake in reciting the power to act did not operate to deprive the city council of the power which it actually possessed under the existing law. Delamater v. City of Chicago, 158 Ill. 575, 42 N.E. 444. The recital was unnecessary and may be disregarded as surplusage.

Upon whom is the burden of proof in this case? The petition is made by the statute (Ann. St., sec. 10651), prima facie evidence that all the statutory requirements with reference to the levy and assessment of the taxes have been complied with, and the burden is placed upon the person seeking to escape from the payment of the taxes levied to show wherein they are not properly chargeable. The defendant relies upon the invalidity of proceedings taken to include his property within the limits of the municipal corporation to escape the payment of city taxes. If the action were quo warranto, brought by the attorney general on behalf of the state to inquire into the validity of the incorporation, the burden of proof would be upon the respondents. State v. Davis, 64 Neb. 499, 90 N.W. 232. But this case is not of that nature. In an injunction suit to prevent the collection of a tax, or in a proceeding such as this looking to the same result, the presumptions are all in favor of the authority, validity and regularity of the action of the city authorities, and their lack of the same must be affirmatively shown. The passage of the ordinance of annexation is presumptive proof of the existence of the statutory prerequisites. Tierney v. Cornell, 3 Neb. 267. It is incumbent on the defendant, therefore, to plead and prove the lack of authority to act on the part of the officers of the city. The general rule is that parties will not be permitted to attack collaterally the incorporation of a city or village, or the manner in which adjoining property has been annexed thereto. This principle has been followed and applied by this court in the following cases: South Platte Land Co. v. Buffalo County, 15 Neb. 605, 19 N.W. 711; McClay v. City of Lincoln, 32 Neb. 412, 49 N.W. 282; County of Lancaster v. Rush, 35 Neb. 119, 52 N.W. 837; State v. Dimond, 44 Neb. 154, 62 N.W. 498; Sage v. City of Plattsmouth, 48 Neb. 558, 67 N.W. 455. It is pointed out in the latter case that some importance was attached in the decisions in the former cases to the length of time during which the owners of land had acquiesced in the proceedings, but this did not affect the general principle that the proper method in which to question the validity of the incorporation was by a direct proceeding in quo warranto. Some expressions in the case of Chicago, B. & Q. R. Co. v. City of Nebraska City, 53 Neb. 453, 73 N.W. 952, seem to be in conflict with the rule announced by all the preceding cases in this court, and none of them is mentioned in that opinion. In that opinion it is said: "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," and it is said in the opinion, in substance, that one of the facts necessary to jurisdiction had not been affirmatively shown to exist.

An interesting question is presented as to whether these cases are directly in conflict, and, if so, as to which announces the better doctrine. A somewhat extended examination of the cases cited in the briefs of counsel, and of a number of other cases, shows that the holdings of the American courts are not entirely in harmony as to the wisdom and propriety of allowing collateral attack to be made upon the validity of the acts of municipal corporations in annexing territory. The cases seem to fall into several classes First, a few hold as the Nebraska City case does, that in the absence of any one of the jurisdictional prerequisites the act of the city council in annexing territory is void, and that it can be attacked collaterally by an injunction proceeding, and at the suit of a private citizen. Forsythe v. City of Hammond, 142 Ind. 505, 30 L. R. A. 576, 40 N.E. 267; City of Indianapolis v. McAvoy, 86 Ind. 587. In another class, the cases go entirely upon the doctrine of laches and de facto incorporation, the idea being that, where a corporation is actually exercising corporate powers over certain territory, either by the levy and collection of taxes or other methods, and the persons living thereon have acquiesced therein for a...