112 Neb. 266 | Neb. | 1924
This is a suit for an injunction to prevent the county treasurer of Kearney county, defendant, from collecting taxes alleged to have been illegally assessed. May 30, 1921, the assessor listed as property owned by plaintiffs in Min-den April 1, 1921, the following: Ditch-digging machine, $4,500; ditch-filling machine, $750; sewer pipe on hand in the city of Minden, $20,000; total, $25,250. On these valuations the taxes levied were $809.28. Plaintiffs were partners and resided at Shenandoah, Iowa. They pleaded in their petition that their digging and filling machines had been assessed for the year 1921 in Iowa and were not, therefore, subject to taxation in Nebraska, and that the sewer pipe listed by the assessor was exempt property of the city of Minden. Defendant by answer put in issue the' facts upon which plaintiffs relied for an injunction and defended the assessment as a valid exercise of the taxing power. Upon a trial of the case the district court found that plaintiffs’ digging and filling machines were not properly listed in Nebraska, because they had been assessed in Iowa for the same period; that plaintiffs owned in Minden, April 1, 1921, subject to taxation, unlaid sewer pipe of the value of $7,600, and that they are liable for taxes thereon to the extent of $243.58. The levy in excess of hat amount was enjoined as invalid. Plaintiffs have appealed, claiming they are not liable to Kearney county for taxes in any amount.
There does not seem to be any error in the judgment of the district court. It is conclusively shown that'the ditching and filling machinery was assessed in Iowa for 1921. Consequently it should not have been listed in Nebraska for that year. The question for determination is plaintiffs’ ownership of unlaid sewer pipe in Minden April 1, 1921. Plaintiffs had entered into a contract August 24, 1920, to install in and for the city of Minden a sanitary sewer system at a fixed price for the completed improvement. While plaintiffs were performing the contract there was on hand April 1, 1921, in the streets of Minden, unlaid sewer pipe of the value of $7,600. At that time whose property was it? It was then above the ground. It had not become a
Under the constitutional and statutory provisions relating to taxatiQn, nonexempt property should be listed by the owners. The sewer pipe in controversy was not exempt. It was the duty of the assessor to see that it was. listed. While he listed machinery not subject to taxation in Nebraska, plaintiffs, nevertheless, owned in Minden sewer pipe which they should have listed. Legally they were tax-debtors to the extent of $248.58. They sought and obtained affirmative relief in equity. As a condition of granting the injunction to prevent the collection of the illegal taxes, it was within the discretion of the court of equity to require plaintiffs to pay what they as tax-debtors
Affirmed.
Note — See Taxation, 37 Cyc. p. 872 (1925 Ann.) ; p. 999 (1925 Ann.).