58 Neb. 37 | Neb. | 1899
The facts upon which this action was predicated may be summarized thus: The city of Omaha opened and extended South Nineteenth street through Hartman’s Addition, and to pay the costs and expenses thereof the municipal authorities levied special assessments upon the adjacent lots, including lots 60, 61, 66, 67, 72, 73, and 78 in said Hartman’s Addition to the city of Omaha. These special taxes or assessments not having been paid by the lot owners at the time the same became delinquent, the lots heretofore mentioned were sold by the county treasurer to Edward B. Baer, at private sale, for said special assessments. Subsequently said special taxes were adjudged null and void, and the purchase-money having been paid by the county treasurer to the city of Omaha, Edward B. Baer instituted this action against the city to require it to return said purchase-money. Plaintiff has prosecuted error from the judgment rendered against him. In this court Thomas H. McCague, as receiver of. the German Savings Bank of Omaha, was substituted as plaintiff.
It is insisted by the city attorney that the precise question herein involved was decided adversely to the contention of this plaintiff in Pennock v. Douglas County, 39 Neb. 293, and it is agreed that the court below determined this case on the authority of that decision. The correctness of the rule announced in Pennock v. Douglas County, supra, is denied by plaintiff. It was there decided that in the absence of statutory authority a city of the metropolitan class cannot be required to refund money which it has received from a purchaser of real estate at a sale
Attention is challenged to the following provisions of section 69, chapter 12», of Compiled Statutes 1889, popularly known as the “Charter of Metropolitan Cities”: “Any party feeling aggrieved by any such special tax or assessment or proceeding may pay the said special taxes assessed or levied upon his, her, or its property, or such installments thereof as may be due, at any time before the same shall become delinquent, under protest and with notice in writing to the city treasurer that he intends to sue to recover the same back, which notice shall particularly state the alleged grievance and grounds thereof, whereupon such party shall have the right to bring a civil action within sixty days thereafter, and not later, to recover back so much of the special taxes paid as he shall show to be illegal, inequitable, and unjust, the cost to follow the judgment or to be apportioned by the court as may seem proper; which remedy shall be exclusive. The city treasurer shall promptly report all such notices to the city council for such action as may be proper.”
The following portion of section 91, chapter 12a, Compiled Statutes, is relied upon by plaintiff: “The city council may at any time correct any error Or defect, or supply any omission in the assessment or listing of any property subject to municipal tax made for the purpose of taxation for the then current fiscal year, and may require any and all persons to appear and answer under oath as to their possession or control of personal property subject to municipal taxation; and the mayor and council by ordinance may make such compromise, settlement, or adjustment of any action or litigation concerning- the validity, legality, or regularity of any tax or taxes levied for city p>urposes, as they may deem just and expedient, and the city treasurer shall conform thereto in his action respecting the collection of taxes under any tax list in his hand. •These provisions shall apply to general municipal taxes and to special assessments, as far as the same are applicable, 'unless otherwise provided in the ordinance levying the same.” We discover nothing in the above provision which justifies the maintaining of the present suit. It would require either a great stretch of the imagination
Another argument is that this action is maintainable under the second proviso of section 144 of the general revenue law (Compiled Statutes, ch. 77), which reads as follows: “If such person claim the tax, or any part thereof, to be invalid for the reason that it was levied or assessed for an illegal or unauthorized purpose, or for any other reason, except as hereinbefore set forth, when he shall have paid the same to the treasurer, tax collector, or other proper authority, in all respects as though the same was legal and valid, he may at any time, within thirty days after such payment, demand the same, in writing, from the treasurer of the state, of the county, city, village, township, district, or other subdivision, for the benefit, or under the authority, or by the request of which the same was levied, and if the same shall not be refunded within ninety days thereafter, may sue such
No statutory provision has been pointed out which permits a municipal corporation to hold a purchaser at a tax sale harmless, and without legislative enactment of that character, this action is not maintainable. We are fortified in this conclusion by legislative interpretation. By section 131, chapter 77, Compiled Statutes, the lawmaking body has conferred power upon the counties to reimburse purchasers at tax sales in certain cases by paying them the amount of the purchase-money, interest, and costs, thus indicating that the legislature regarded that
Affirmed.