50 Neb. 393 | Neb. | 1897
This action was brought by the railroad company in the district court of Nemaha county to recover from the county $213.12 for taxes paid under protest, and alleged to have been illegally and unlawfully levied in the year
From the allegations of the petition it is disclosed that the county board of Nemaha county levied taxes in said county for the year 1892 for the following amounts: General fund, 9 mills; special road fund, 1 mill; county bridge, 4 mills; county road, 2 mills; county soldiers’ relief fund, mill; total, 16¿ mills; that no vote of the people had been taken authorizing any such levies; that the assessed valuation of the property of the plaintiff in said county for said year was $213,120, and the amount of taxes imposed in excess of the constitutional and statutory limit was $213.12, which last mentioned sum plaintiff paid to the treasurer of Nemaha county on January 27, 1893, under written protest at the time duly made, and on the same day made a demand in wilting upon said treasurer for the refunding to it of the amount of taxes thus paid, but. that no part of the same has been refunded, and that, on the 16th day of March, 1893, the county clerk of said county notified plaintiff that the county had decided, upon due consideration, not to refund the same.
The first question to be considered is whether the county board had any authority to levy a tax of 16¿ mills on the dollar valuation for county purposes. Section 5 of article 9 of the constitution of this state declares: “County authorities shall never assess taxes the aggregate of which shall exceed one and a half dollars per one hundred dollars valuation, except for the payment of indebtedness existing at the adoption of this con-constitution, unless authorized by a vote of the people of the county.” The foregoing provision is clear and unambiguous. The maximum rate of taxes which county boards can impose in any one year is by it fixed at “one and a half dollars per one hundred dollars valuation,” unless a greater rate is authorized by a vote of the county, except for the payment of - a valid indebtedness
It is insisted that the court below had no original jurisdiction of the action, but that the remedy of plaintiff was to have presented its claim to the county board, and if the same was rejected, appeal from the decision to the district court. The determination of this question involves a consideration and construction of sections 144 and 145 of article 1, chapter 77, Compiled Statutes. Section 144, inter alia, provides: “In every case the person or persons claiming any tax, or any part thereof, to be for any reason invalid, who shall pay the same to the county treasurer, tax collector, or other proper authority, may proceed in the following manner, viz.: First — If such person claim the tax, or any part thereof, to be invalid for the reason that the property upon which it was levied was not liable to taxation, or that said property has been twice assessed in the same year and taxes paid thereon, he may pay such taxes under protest to the tax collector, county treasurer, or other proper authority, and it shall be the duty of the collector, treasurer, or other proper authority receiving such taxes, to give a receipt therefor, stating thereon that they were paid under protest, and the grounds of such protest, whether not taxable, or twice assessed, and taxes paid thereon. * * * Within thirty days after paying such taxes, the person paying them shall file a statement in writing, duly verified, with the county board, setting forth the amount of
It is very evident that the legislature has, by the foregoing section, provided two separate and distinct modes of procedure to obtain illegal taxes which have been paid under protest, — one by the presentation of a claim for such taxes, by the person paying the same, to the county board for audit and allowance, with the right of appeal from the decision provided for; and the other remedy being by suit at law to recover such taxes. But it will not escape notice that the method of procedure is determinable by the ground or grounds which render the taxes illegal. The first method provided in the section is limited to taxes imposed on property not subject to taxation, or to taxes rendered invalid by the reason of double assessment of the same property, while suit against the county, city, or other subdivision is authorized when the tax paid under protest was imposed for an illegal or unauthorized purpose, or for any reason other than for double assessment, or that the property was exempt from taxation, is invalid. The taxes in controversy in this case exceeded the maximum constitutional limit; therefore they were assessed for an illegal and unauthorized purpose within the meaning of said section 144, and the remedy by suit was the proper one to. pursue.
In reaching this conclusion the provisions of section 145 of said chapter have not been lost sight of. They, it is true, authorized the treasurer, when a demand is made upon him to refund taxes paid, as provided in the second method of procedure indicated in section 144, to transmit a copy of such demand to the authorities whose duty it is to audit and pay claims against the state, county, city, etc., as the case may be, and they are required to pass upon the same as upon any other claim. This section, 145, was not enacted for the benefit of the taxpayer, but for the public, to afford the proper authorities an opportunity to pass upon and pay claims for taxes paid under
Reversed and remanded.