66 Neb. 228 | Neb. | 1902
The plaintiff commenced this action in the district court for Lincoln county to recover of the defendant certain illegal taxes which it had theretofore paid defendant under protest. The petition contained two canses of action. A general demurrer was filed to the second cause of action,
1. Was the tax in question levied for an illegal and unauthorized purpose? For the second cause of action it was alleged in the petition that for the year 1897 the defendant county levied a tax of nine mills for general fund purposes, and two mills for a bridge fund, on the property of the plaintiff, which bridge-fund tax amounted to the sum of $312.14. It was further alleged that said levy of two mills for bridge purposes was unauthorized by law; that it was far in excess of the amount necessary, or likely to be needed for the maintenance of the bridges of the said county, and for any purpose for which said tax might be levied; that at the time of making said levy and collecting said taxes the bridge fund of the county should have been well supplied, and there, should have been on hand in said fund large sums of money, such as would not require any levy for said year for that fund; and said levy was made for said fund Avhen, if the funds properly belonging thereto had been maintained and preserved therein, no levy for bridge purposes would have been necessary for that year; and that said tax was levied fraudulently, unnecessarily and unlawfully, in order that said bridge fund might be unduly and excessively enlarged, and increased, for the sole purpose of transferring the surplus arising therefrom to the general fund of said county, and thereby to increase the said general fund above the legal limit, and above the amount that could be produced in said fund by taxation at
In the case of Chicago, B. & Q. R. Co. v. Nemaha County, 50 Nebr., 393, it was held that the taxes levied by a county in excess of the maximum rate fixed by the constitution were levied for an illegal and unauthorized purpose, within the meaning of section 144 of article 1, chapter.77 of the Compiled Statutes. See, also, Chase County v. Chicago, B. & Q. R. Co., 58 Nebr., 274.
In the case of Union P. R. Co. v. Dawson County, 12 Nebr., 254, 257, the court said: “The limitation upon the rate of taxation is for the protection of taxpayers, and to secure economy in the expenditure of public moneys. It is the evident intention of the law that only the amount required in any particular fund in one year shall be levied, and no more. If the law limits the levy for the ordinary county revenue to ten mills on the dollar valuation, no greater sum can be raised for that purpose by levying more than is required for a sinking fund, or any other tax, and then transferring the surplus to the general fund. If
In the case of Grand Island & W. C. R. Co. v. Dawes County, 62 Nebr., 44, the court held that “when county commissioners have made a levy of nine mills for general fund purposes, they have no further power to levy an additional tax for payment of outstanding warrants previously issued against the general fund in excess of the statutory limit, unless authorized by a vote of the people.” It was further said: “It will be noted that by the terms of the statute
In the case of Union P. R. Co. v. Cheyenne County, 64 Nebr., 777, 779, the court uses the following language: “From a careful examination of the statute we are constrained to say that the action of the board of county commissioners in transferring the unexpended balance remaining in the bridge fund to the general fund was unauthorized and illegal. The statute providing for the transfer of an unexpended balance remaining in a fund to the county general fund, probably has no application to balances remaining in funds for which, under the statute, a levy is required each year. There-is no county in the state which is not required to make expenditures for the erection and repair of bridges each year, and under the statute a levy is required to be made for such purpose within the limit of four mills for whatever amount is necessary to meet the expenditures for such year. To permit the county to make a levy for the bridge fund in excess of the amount required for the year in which the levy is made, with the purpose in view of transferring the balance to the general fund, would be to permit it, by indirection, to accomplish what, by statute, it is prohibited from doing directly,”
Section 77 of the revenue law provides that the county board shall levy the necessary taxes for the current year. Thus the law which gives the board power to tax, limits such power to the actual necessities of the county therefor. It must be conceded that the county authorities would be unable to levy a tax which would produce the exact amount of revenue necessary to meet the needs of any particular fund, on account of the uncertainty' of collections, but they can determine such amount to á reasonable certainty. In making estimates and in levying taxes they should be given
2. Can such a tax, having been paid under protest and its repayment demanded from the treasurer according to the provisions of section 144, article 1, chapter 77 of the Compiled Statutes, be recovered in an action at law? This court has held in the case of Chicago, B. & Q. R. Co. v. Nemaha County, supra, that a suit at law may be maintained to recover such taxes. This case was followed and approved in the case of Chase County v. Chicago, B. & Q. R. Co., supra. Again, in the case of Dakota County v. Chicago. St. P., M. & O. R. Co., 63 Nebr., 405, this court held that taxes levied in excess of the constitutional limit are for an illegal and unauthorized purpose, and are void; that one paying taxes in excess of such constitutional limit may recover such excess in an action at law, although such taxes were not paid under protest. It is true that it was held in Union P. R. Co. v. Cheyenne County, 64 Nebr., 777, under the facts existing in that case, that an injunction would not lie to restrain the collection of the. tax complained of; and it is possible that the district court sus
All these facts being admitted by the demurrer, we are constrained to hold that the petition states a cause of action, and the demurrer should have been overruled. It follows that the court erred in sustaining the defendant’s demurrer to the plaintiff’s petition, and in dismissing the second cause of action.
We therefore recommend that the judgment of the district court be reversed, and the cause remanded for further' proceedings.
■ By the Court: For the reasons given in the foregoing opinion, the judgment of the district courtis reversed,, and the cause remanded for further proceedings.
Reversed and remanded.
Session Laws, 1877, page 214.
Compiled Statutes, eh. 77, art. 1, sec. 77.