Wales v. Warren

• Citation: 92 N.W. 590,66 Neb. 455
• Decision Date: 19 November 1902
• Docket Number: 12,654
• Parties: HARRY WALES, APPELLEE, v. MARTHA W. WARREN ET AL., APPELLANTS
• Court: Supreme Court of Nebraska

92 N.W. 590

66 Neb. 455

HARRY WALES, APPELLEE, v. MARTHA W. WARREN ET AL., APPELLANTS

No. 12,654

Supreme Court of Nebraska

November 19, 1902

APPEAL from the district court for Otoe county. Foreclosure. Tried below before JESSEN, J. Decree for plaintiffs. Defendants appeal. Affirmed.

AFFIRMED.

W. F Moran and Edwin F. Warren, for appellants.

John C Watson (Robert Ryan, of counsel), contra.

DUFFIE C. AMES and ALBERT, CC., concur.

OPINION

DUFFIE, C.

This appeal is from a decree entered in the district court for Otoe county, foreclosing a mortgage and also tax liens upon property covered by the mortgage and other property. The appellee presents only the question of the validity of certain special taxes levied by Nebraska City for paving curbing and guttering taxes. The principal point insisted on by the appellants is that the charter governing the city of Nebraska City contains no provision for a board of equalization to equalize assessments, and it is insisted that no valid tax can be assessed against the property of the taxpayer without giving him an opportunity to be heard before some equalizing board duly appointed by law. We do not care to discuss this question. The rule has undoubtedly been well established that the enforcement of a tax levy is a mode of depriving the citizen of his property; and where the assessment is not specific, and imposed upon all persons equally, as in case of a poll or occupation tax, it is necessary for its validity that the taxpayer have due notice of the assessment, and the opportunity to be heard in opposition thereto, to the end that he may not, in violation of constitutional guarantees, be deprived of his property without due process of law. In Gatch v. City of Des Moines, 63 Iowa 718, 18 N.W. 310, and County of Santa Clara v. Southern P. R. Co., 18 F. 385, this question has received exhaustive consideration, and leaves no doubt that on both principle and authority this is the only rule that can be sustained. Conceding this, we are unable, however, to agree with the appellants that the charter of Nebraska City does not provide a board for the equalization of taxes. Subdivision 7 of section 52, article 2, chapter 14, of the Complied Statutes of 1899, makes express provision for the sitting of the city council as a board of equalization, and the giving of four weeks' notice of such sitting. There is no specific allegation in the answer filed by the appellants that the city council failed to sit and equalize the tax, and to give the proper notice of such action. It is true that there are certain allegations in the answer, in the way of general statements, that "there was no proper or lawful session of the board of equalization, held as required by law, by the city council of the city of Nebraska City, to equalize the said levies and assessments of taxes for paving, curbing and guttering taxes alleged to be about to be levied, and which were thereafter attempted to be levied for said purposes upon said premises." But these allegations are mere legal conclusions and not the statement of any fact casting any doubt on the validity of the tax. The tax-sale certificate and receipts for taxes and special assessments, are prima-facie evidence of the validity of the taxes which they represent (Ure v. Reichenberg, 63 Neb. 899, 89 N.W. 414); and this being so, the burden is on the party alleging the invalidity of the tax to...