Earl v. Duras

13 Neb. 234 | Neb. | 1882

By the Court.

This is an action brought by the plaintiffs, who are taxpayers of school district No. 17, of Saline Co., to enjoin the collection of a tax of five mills on the dollar valuation levied upon the taxable property of said district for the use and benefit of district No. 102. A demurrer to the petition was sustained in the court below and the action dismissed. The plaintiffs appeal to this court.

It is alleged in the petition that in June, 1876, the county superintendent of public instruction of Saline county divided school district No. 17, and created district No. 102, which was formed from the territory set off from 17, and that said superintendent duly ascertained and determined the amount justly due from district No. 17 for the corporate property retained by it, which amount said district has paid to district No. 102; that on the 22nd day of June, 1881, the county commissioners of Saline county, on their own motion made a levy of five mills on the dollar valuation upon all the taxable property in district No. 17 for the purpose of paying the same to district No. 102 for the coporate property retained by district No. 17; that at the time of the levy of said tax there was not nor is there now anything due from district No. 17 to district No. 102, and said tax is wholly unauthorized. There are other allegations to which we need not refer.

The attorney for the defendant contends that sec. 144 of the revenue law of 1879 (Comp. Stat., 427) prohibits an injunction to restrain the collection of a tax unless it was levied for an unauthorized purpose. Such is undoubtedly the law, but a tax which is levied without authority of law is a tax forpan unauthorized purpose; that is, the taxis unauthorized. When an illegal tax is levied upon real estate an action at Lot does not afford an adequate remedy; nor can a court of law grant adequate relief. The tax would remain as an apparent incumbrance upon the property and would cast a cloud upon the title to the same. This a court of equity may prevent or remove and quiet the plaintiff’s title. The petition states facts sufficient to constitute a cause of action, and the judgment is reversed and the cause remanded for further proceedings.

Reversed and remanded.