Touzalin v. City of Omaha

• Decision Date: 01 January 1889
• Parties: ALBERT E. TOUZALIN, APPELLANT, v. CITY OF OMAHA ET AL., APPELLEES
• Court: Nebraska Supreme Court

41 N.W. 796

25 Neb. 817

ALBERT E. TOUZALIN, APPELLANT, v. CITY OF OMAHA ET AL., APPELLEES

Supreme Court of Nebraska

January 1, 1889

APPEAL from the district court of Douglas county. Heard below before GROFF, J.

REVERSED AND REMANDED.

Savage Morris & Davis, for appellant, cited: Morrill v Taylor, 6 Neb. 241. Dillon on Mun. Corp., 3d Ed., Sec 914. High on Injunctions, 2d Ed., Vol. 2, Sec. 1236. Strusburgh v. New York Cy., 87 N.Y. 452. Dupage Co. v. Jenks, 65 Ill. 275. Brandirff v. Harrison Co., 50 Iowa 164. Johnson v. Hahn, 4 Neb. 139. South Platte Land Co. v. Buffalo County, 7 Neb. 253.

John L. Webster, for appellee. The legislature has the constitutional authority to pass a law forbidding the courts to issue injunction against the collection of taxes, if a way be provided to recover the tax back if the same shall prove to be illegal. Eddy et al. v. Township of Lee et al., 40 N.W. 792. Snyder v. Marks, 109 U.S. 189. State Railroad Tax Cases, 92 U.S. 613. Cheatam et al. v. U.S. Id., 88. Cody v. Lennard, 45 Ga. 85. Lennon et al. v. The Mayor of New York, 55 N.Y. 361. The right provided to pay the tax and then sue to recover the same back is an adequate remedy, and does away with the right to an injunction. Brewer v. City of Springfield, 97 Mass. 152. Loud v. City of Charlestown, 99 Mass. 208. Norton v. City of Boston, 119 Mass. 194. Tennessee v. Sneed, 96 U.S. 69. The right of courts to grant injunction against illegal taxes was not a right secured to them by the constitution under Sec. 9, Art. 6. Pullan v. Kinsinger, 9 Am. Law Reg., 566. Loud v. Charlestown, 99 Mass. 209.

OPINION

MAXWELL, J.

The plaintiff alleges in his petition, in substance, that the city of Omaha is duly incorporated under the laws of the state, and that Truman Buck is the treasurer thereof. "That the plaintiff is the owner in fee simple of certain lots, pieces, and parcels of ground known and described as lots thirteen to twenty inclusive, in block three of Hillside addition No. two to the city of Omaha, and being a portion of the tract shown on a map of the city of Omaha, published by George P. Bemis, in the year 1883. Lot eighteen in section sixteen, township fifteen, range thirteen east of the sixth principal meridian. Said lots are between 27th and 28th streets, in said city, and are bounded south by a prolongation of the north line of California street westward.

"That by an ordinance known as ordinance 771, the said city of Omaha ordered that the street known as California street, in said city, from 22d street to 26th street, and the alley in block 43, be graded, and directed the board of public works to superintend said work; that said ordinance was passed on the 8th day of July, 1884, and no ordinance or order has ever been passed or made for the grading or laying out of said California street for any distance whatever west of said Twenty-sixth street.

"That said California street has its western terminus or end at Twenty-sixth street aforesaid, and the said city has acquired no right to and does not own the land between Twenty-sixth and Twenty-seventh streets, upon which said California street, in case said street is ever extended westward from its present terminus as aforesaid, will be situated, but on the contrary said land is owned by and in the possession of private individuals, and no attempt by negotiation, condemnation, or otherwise, has ever been made by said city to obtain title to or possession of the same.

"That in pursuance of the ordinance hereinbefore referred to, certain grading was done on said alley, and on California street between 22d and 26th streets, the western terminus of said California street, but at no place westward of said terminus was any grade established, or any street laid out by said city; or any grading done by or in pursuance of any ordinance or direction of said city, or any grading done whatever; and that the lots of said plaintiff, hereinbefore described, were neither adjacent to nor abutting upon the street grade.

"That while it is true that certain digging was done upon the property adjoining plaintiff's lots, and certain earth removed therefrom, such digging and removal was without any notice to or knowledge of this plaintiff, and was unauthorized and a trespass, by reason whereof the plaintiff's said property has been greatly injured and the access to it impaired, and this plaintiff has suffered damages in a large sum of money, while on the other hand he has derived no benefit from the same whatever.

"And the plaintiff further says that thereafter, to-wit, on or about the 29th day of November, 1884, the said defendant, the city of Omaha, by its common council, passed an ordinance, No. 633, levying a special tax and assessment to cover one-half of the cost of grading California street from 22d street to 28th street, fixing said one-half of the cost at $ 5,583.71, and making the said levy on certain lots and parcels of land on California street between 22d and 26th streets, and also assessing the lots hereinbefore described as belonging to this plaintiff $ 59.91 each, amounting in all to the sum of $ 479.92.

"That said assessment upon the property of this plaintiff is utterly illegal and without any authority whatever, and is in conflict with, and in violation of, the provisions of law relative to grading and the assessments thereof; that said assessment of plaintiff's property is made upon property not abutting upon the street graded, and not included in any ordinance authorizing any grade whatever; that after the passage of said ordinance, and on said last mentioned day, a duplicate thereof was made and delivered to the said defendant, Truman Buck, treasurer aforesaid; to which said duplicate the clerk of the city appended a warrant in the usual and due form of law, requiring the said treasurer to collect the said pretended special assessment by distress and sale of the goods and chattels of the person, persons, or bodies corporate owing such special assessment, and also of the goods and chattels of this plaintiff if the same should not be paid before the time fixed for the same to become delinquent, to-wit, the 17th day of January, 1885; that the said Truman Buck, treasurer as aforesaid, is by law required to collect the amount of such special assessment by distress and sale of the personal property of plaintiff, in case the same is not paid before said last mentioned date; and unless the said defendant Buck is restrained by the order of this court, he will make such levy and collect the amount of such assessment, and this plaintiff will have no right of action to recover damages whatever against said treasurer, for the reason that by law the warrant aforesaid is a full and complete justification to him in any such action, to recover damages or costs for any act or proceeding by him done or taken in conformity with the commands thereof; that by the act of 1881, all special assessments are made a lien upon the real estate assessed, and in case said defendant, the city treasurer, should not see fit to collect said pretended special assessment by distress and sale of the goods and chattels of the plaintiff, then and in that case the same would thereupon become a lien upon the plaintiff's real estate hereinbefore described; and in that case and in case said property is sold for such assessment, a cloud will be cast upon the plaintiff's title thereto; that unless the said defendant, the city treasurer, is restrained and enjoined by order or decree of this court, he will report to the county treasurer the said assessment, and thereupon said real estate of said plaintiff will be advertised and sold for such pretended assessment, as is by law provided in the case of assessments properly made, and thus a cloud will be cast upon the plaintiff's title; that the plaintiff is without adequate remedy at law for the wrongs and injuries hereinbefore set forth."

The plaintiff prays for...