The Burlington & Missouri River Railroad Co. v. Kearney County

• Decision Date: 13 May 1885
• Citation: 23 N.W. 559,17 Neb. 511
• Parties: THE BURLINGTON AND MISSOURI RIVER RAILROAD COMPANY IN NEBRASKA, APPELLANT, v. KEARNEY COUNTY, APPELLEE
• Court: Nebraska Supreme Court

23 N.W. 559

17 Neb. 511

THE BURLINGTON AND MISSOURI RIVER RAILROAD COMPANY IN NEBRASKA, APPELLANT, v. KEARNEY COUNTY, APPELLEE

Supreme Court of Nebraska

May 13, 1885

APPEAL from Kearney county. Heard below before GASLIN, J.

AFFIRMED.

Marquett & Deweese, for appellant.

J. M Stewart, A. J. Poppleton, and Harwood, Ames & Kelly, for appellee.

OPINION

REESE, J.

This action was brought to restrain the collection of certain taxes levied by the commissioners of Kearney county upon the property of the plaintiff for the year 1879. It is claimed that the taxes in question are illegal for want of authority on the part of the commissioners to levy them. Upon the trial of the cause in the district court a part of the relief prayed for was granted and the injunction made perpetual as to that part. But a part being refused and the injunction dissolved as to the part so refused, the plaintiff appeals.

By the brief of counsel for defendant it is strongly insisted that plaintiff has received all the relief to which it is entitled under the allegations of its amended petition, and that no cause of action is stated for any further relief. If this be true, it would serve no good purpose to examine the questions presented by the briefs and arguments of counsel upon the other features discussed by them.

Ths allegations of the petition may be briefly but fairly stated as follows: That it is a corporation duly organized under the laws of the state, and is the owner of the property (land) described in the schedule attached, and which was assessed for the year 1879, at the sum of $ 31,179. That it is also the owner of a railroad running through the county of Kearney for a distance of 14 68/100 miles, which was assessed by the state board of equalization for said year at the sum of $ 8,032 per mile. That on the 7th day of July of that year the board of county commissioners made the following levies of taxes:

For State Purposes--

General fund, 4 mills on the dollar.

Sinking fund, 5/8 of one mill on the dollar.

School fund, 1 mill on the dollar.

University fund, 3/8 of one mill on the dollar.

For County Purposes--

General fund, 10 mills on the dollar.

Sinking fund, 31 mills on the dollar.

Bridge fund, 2 mills on the dollar.

Court-house fund, 7 mills on the dollar.

School purposes, upon the property of school district number one, 30 mills on the dollar.

The recitals copied from the county commissioners' record of the levy show that the question of levying the tax known as court-house tax was by the direction of a vote of the people of the county at an election held on the 31st day of May, of the year 1879, upon a proposition submitting the question of raising by taxation and appropriating the sum of $ 2,247 to aid in the construction of a court-house at Minden.

With reference to the school district tax, the petition alleges that the "board had no authority to levy for school purposes a tax in excess of twenty-five mills on the dollar valuation."

It is further alleged that the taxes levied for county purposes aggregated fifty mills on the dollar valuation, and that at the time of making the levy, "there were outstanding, as plaintiff has been informed and verily believes, indebtedness against said county (amounting to) seventy-four thousand dollars, of which fifteen thousand dollars were debts contracted and obligations incurred since the first day of November, 1875, for the payment of none of which the commissioners were authorized to levy a sinking fund. That all of said levies for county purposes were made by said commissioners of said county and by no other person or corporation, and that of said levy of fifty mills at least thirty mills was excessive and more than said commissioners were authorized to levy. The said levy of fifty mills on dollar valuation on the property of said county were not made for the purpose of paying any indebtedness which accrued prior to November 1st, 1875."

"Plaintiff therefore, under the advice of counsel, submits that the said levies so made and referred to were made without authority of law and are void. That said commissioners had no power or authority to levy said tax for said purpose, and that the same are in contravention of the constitution and the statutes of the state of Nebraska, and are in excess of the amount that the board of county commissioners are authorized to levy."

It is further alleged that as against the lands described in the petition, there is charged for the year 1879, taxes amounting to $ 2,137 and that of that amount at least $ 935.37 is in excess of the amount of taxes which should be charged against said lands, and which was so charged and levied without any authority. That against the railroad there is charged for the year 1879 taxes amounting to the sum of $ 8,767.56, of which amount at least the sum of $ 3,617.61 is in excess of the legal amount which should have been so charged, and is in excess of the amount authorized to be levied in accordance with the statutes and constitution of the state. That on the 28th day of April, 1880, the plaintiff tendered and paid to the county treasurer $ 5,804.24 and on the 20th day of October, 1880, it tendered and paid $ 573.23, which included interest, and which was more than the amount of legal taxes justly due from the plaintiff for said year 1879.

It is further stated that plaintiff is entitled to the relief demanded, which consists in restraining defendant from collecting the excessive taxes; that unless defendant is restrained the treasurer will proceed to sell the property of plaintiff...