Thatcher v. Adams Co.

• Decision Date: 21 April 1886
• Citation: 27 N.W. 729,19 Neb. 485
• Parties: THATCHER v. ADAMS CO.
• Court: Nebraska Supreme Court

19 Neb. 485

27 N.W. 729

THATCHER

v.ADAMS CO.

Supreme Court of Nebraska.

Filed April 21, 1886.

Appeal from Adams county.

Hester & McCreary, for plaintiffs.

L. J. Capps, for defendant.

REESE, J.

Plaintiffs filed their petition in the district court, alleging, in substance, that the county board, on the twelfth day of June, 1885, ordered a tax of 21 mills to be levied upon their separate property situated in sections 24, 25, and 36, in town 7, range 10, in Adams county; that the indebtedness for the payment of which levy was made was a debt of school-district No. 13 of said county, but that the said three sections were never within said district, were in no way liable for its debts, and that the county board had no authority to levy such tax upon the property described. An injunction is prayed to restrain the county clerk from transcribing the levy onto the tax-lists, and thereby casting a cloud upon the title of the real estate of the plaintiffs. To this petition a general demurrer was filed, which was sustained, and to which plaintiff excepted, and now appeals for the purpose of securing a review of the decision of the district court in sustaining the demurrer.

The abstract of the petition is incomplete, but enough is shown, from which we conclude that the levy was made for the purpose of raising sufficient funds to pay certain bonds issued by said school-district No. 13. It is conceded by defendant that if the property described in the petition was not a part of school-district No. 13 at the time the bonds were issued, it could not be taxed to pay the debt; but it is contended that injunction will not lie to restrain the clerk from transcribing the tax onto the tax-lists, the plaintiffs having an adequate remedy at law under the provisions of section 145, c. 77, Comp. St. It may be that a remedy is given by the section referred to, but that it is adequate we think could not be contended. Section 144 of the same chapter prohibits the granting of injunctions to restrain the collection of taxes, except in cases where the tax has been levied for an “illegal or unauthorized purpose.” In such cases, the collection of a tax may be restrained by injunction. It would seem to follow, logically, that if the collection of a tax might be restrained, then the same remedy would exist to prevent the creation of a lien or cloud upon real estate, and the title thereto, by placing the tax upon the record-books of the county, and ordering its collection.

Assuming the allegations of the petition to be true, as we must when assailed by a demurrer, the question presented is, was the tax levied upon the property of the plaintiffs so levied for an unauthorized purpose? We think it must be conceded that it was. If the property was not liable for the debt, the county board had no authority to make it so. As well might the tax be levied upon any other...