67 Neb. 6 | Neb. | 1903
Lead Opinion
Horace A.' Kelley, the holder of tax-sale certificates covering real estate upon which no taxes were due when the sales were made, having sued for indemnity under section 131 of the general revenue law, now brings to this court for review the record of an adverse judgment. The lots described in the certificates are situated in the city of Beatrice, and the taxes charged against, them and certified by the city authorities to the county clerk of Gage county were what is commonly known as special assessments for improvements. These assessments were not made in the manner prescribed by the statute, and, according to the stipulation of the parties, were void. The irregularities which rendered them void did not, however, appear in the certificates sent, under the direction of the city authorities, to the county clerk. The clerk, therefore, in entering the assessments upon the tax lists, performed a duty plainly enjoined upon him by the statute. And in making
. In Merriam v. Otoe County, 15 Nebr., 408, it was decided that it is only when a tax sale is made in consequence of a mistake or wrongful act, which is not matter of record, that the county is to save the purchaser harmless. This decision seems to be approved in Martin v. Kearney County, but whether it is a correct construction of the statute it is not now necessary to determine. It may, Iioav-ever, be remarked that we are not aivare that it has ever been directly or indirectly overruled. It is certainly not in conflict with Roberts v. Adams County, 18 Nebr., 471, 20 Nebr., 411; Wilson v. Butler County, 26 Nebr., 676; or Fuller v. Colfax County, 33 Nebr., 716, — to which counsel for plaintiff have directed our attention. In those cases the lands sold were not subject to taxation, but that fact
The judgment of the district court is affirmed, and upon these grounds: (1.) A county is only liable under section 131 for the mistakes of its own officers — the officers through whom its taxes are levied and collected. (2.) In dealing with the Beatrice assessments, neither the county clerk nor county treasurer was acting as an officer or agent of the county. (3.) Neither of these officers made any mistake or did any wrongful act within the meaning of section 131.
Affirmed.
Session Laws, 1871, p. 83.
Rehearing
The following opinion on rehearing was filed April 21, 1904. Former judgment adhered to:
Commissioner’s opinion, Department No. 3.
Let It Stand as Decided. On reexamination title former judgment is adhered to.
I think that the former judgment entered by this court should be adhered to. The reasoning in the former opinion, page 6, ante, and also in Martin v. Kearney County, 62 Nebr., 538, is to my mind conclusive of the question in controversy. To hold that the county is liable, or that the legislature intended to make it liable, to a tax-sale purchaser for money invested by him in the purchase of real property delinquent for special or ordinary taxes levied by the authorities of a city, is to offer a premium to the city officials to neglect their duty in the manner and method of imposing taxes for municipal purposes, and to impose a penalty on the county and its inhabitants for a wrong done by third parties, officers over whom they
It is recommended that the judgment heretofore entered be adhered to.
Concurrence Opinion
concurring.
I consent to adhering to the former opinion in this case reluctantly and because we are committed to such construction of the statute in Martin v. Kearney County, 62 Nebr., 538, and Otoe County v. Gray, 10 Nebr., 565, and not because I think it is based upon the better reason.
For the reasons stated in the ioregoing opinion, it is ordered that the former opinion heretofore entered in this cause be adhered to.
Former judgment adhered to.