53 Neb. 453 | Neb. | 1898
Action was instituted by the Chicago, Burlington & Quincy Railroad Company to enjoin the collection of a city tax assessed in 1893 by the authorities of Nebraska City upon the west half of plaintiff’s bridge spanning the Missouri river at or near said city. From a decree awarding the company a peremptory injunction the defendants appeal.
The tax in question is claimed by the plaintiff to be invalid upon two grounds: First — The bridge in question is a part of plaintiff’s line of railroad, and the portion of the structure lying within this state is not subject to taxation by the local assessing and taxing officers, but the state board of equalization alone has jurisdiction to assess the same. Second — No portion of said bridge is within the corporate limits of Nebraska City, and therefore the municipal authorities thereof had no power to tax the same for any purpose whatever.
The first contention is in the teeth of the decision of this court in Cass County v. Chicago, B. & Q. R. Co., 25 Neb. 348, where it was distinctly ruled that the west half of the railroad bridge across the Missouri river at Plattsmouth was subject to taxation by the local assessor and not by the state board of equalization. That decision is vigorously assailed as being unsound, and standing alone as a precedent upon the question therein considered.' An investigation of the subject anew is sought
The facts upon which the second ground for relief are predicated are substantially these: The territorial legislature of Nebraska in 1855 passed an act incorporating Nebraska City, the first section whereof provided “that all the territory within the geographical limits of Nebraska City, as designated upon the plat of said city, together with all the additions that may be hereafter made thereto according to law, is hereby declared to be a city by the name of Nebraska City.” (Session Laws 1855, p. 391.) At the same session of the legislature there was enacted a law incorporating as Kearney City all the territory included in the boundaries of such city as designated upon the plat thereof. (Session Laws 1855, p. 417.) These two cities were consolidated by legislative enactment in 1857, and declared to be a corporation by the name and style of .Nebraska City. (Session Laws 1857, p. 53.) The recorded plats of the two cities thus consolidated show a strip of land 160 feet wide lying between their eastern boundaries and the west bank of the Missouri river, which strip is designated on the plats as “Levee 160 feet Avide.” The west end of the railroad bridge is 120 feet east of the east boundary line of Nebraska City, as shoAvn by the plats aforesaid, so that no portion of the bridge is within the limits of such city, unless the corporate boundaries were legally extended by ordinance No. 226 passed by the mayor and council on December 5, 1892, the first section of Avhich follows:
It is suggested that the boundaries of the city were enlarged so as to include the said strip of land 160 feet wide lying immediately east of the platted territory, by ten years’ adverse usage by the city authorities. Doubtless, the mayor and council entertained a different view, else the ordinance to which reference has been made would most likely never have been adopted. They hardly would have attempted to annex territory which was already regarded as embraced within the boundaries of the. qity. Moreover, this record fails to show that the city limits were changed to include this adjacent territory by virtue of any adverse use or occupancy of the premises. No part of the bridge being within the geo
In argument it is said that plaintiff has an adequate remedy at law, and that injunction will not lie to restrain the collection of the tax. It is true a court of equity will not interfere to prevent the enforcement of a tax merely because the assessment was irregular, but injunction may be resorted to where the whole tax is absolutely void and the enforcement thereof would be inequitable and against conscience. (Touzalin v. Omaha, 25 Neb. 817; South Platte Land Co. v. Buffalo County, 7 Neb. 253; Bellvue Improvement Co. v. Bellvue, 39 Neb. 876; Chicago, B. & Q. R. Co. v. Nemaha County, 50 Neb. 393; Chicago, B. & Q. R. Co. v. Cass County, 51 Neb. 369.) As the authorities of Nebraska City had no jurisdiction to impose the taxes in controversy plaintiff máy invoke the aid of a court of equity to prevent the collection thereof. Eor the reason stated, the decree of the district court is right and it is
Appirmbd.