No. 28893 | Neb. | Mar 30, 1934
The plaintiff filed a petition for the foreclosure of tax liens held by him, founded upon a tax sale certificate and delinquent taxes paid as subsequent taxes to said tax sale ■certificate, the original certificate being in the sum of $205.40, and the four subsequent years of 1927 to 1930, inclusive, being for a face amount of about $798.77, with interest at 12 per cent., said taxes covering the west half of the southwest quarter of section 4, township 8, range 8, in Lancaster county, Nebraska.
To this petition Mary Elizabeth Bratt, Lourene Bratt Wishart, and Joseph S. Wishart, administrator of the estate of John P. Bratt, filed an amended answer, setting up that John P. Bratt was the owner of the property described in the petition and sold the same to James O. Jones, taking back a note and mortgage in the sum of $9,000 upon the property described in the petition; that, prior to the taxes covered by the tax certificate owned by -the plaintiff in this case, school district No. 8 was formed
Plaintiff alleges that the taxes represented in plaintiff’s tax sale certificate, and subsequent taxes paid thereon, are
James 0. Jones and wife, Clara, file a separate answer, setting out that they are the owners of the 80 acres described in the petition, and that they mortgaged said land to John P. Bratt for $9,000, the same being a purchase money mortgage thereon, and the said answering defendants, Jones and wife, allege similar facts in relation to the taxes in the Bennet school district as compared with the taxes on farm lands lying without said district, and that the farm lands within the district are taxed too high, and that for that reason the school taxes upon their 80 acres of land are illegal and void, and the tax sale certificate of plaintiff which includes said school taxes of the Bennet school district is illegal and void, and pray that the trial court will so declare.
Trial was had, and the decree and judgment of the lower court was for the plaintiff upon his tax liens, and holding that the school district taxes levied, as set out in the plaintiff’s petition, were not void, but at most were voidable, and foreclosure was granted upon the tax liens, as prayed.
In 1915 the legislature passed an act for the purpose of allowing rural school districts to join together and include sufficient real estate within their district to warrant the issuing of bonds and the building of a high school. This consolidation of several school districts allowed rural high schools to be established at points where the same were demanded and permitted, such district to collect tuition for all pupils attracted to said high school from adjoining school districts. The proceedings leading up to these matters were had in accordance with sections 79-901 to 79-905, Comp. St. 1929.
The tax sale certificate in suit was issued for the taxes
The assessing authorities are required to make valuation once in four years of all real estate, as of April 1, by section 77-1601, Comp. St. 1929. This section provides that all real property shall be assessed in 1926 and each four years thereafter. While this section was amended in 1933 (Laws 1933, ch. 130) to require all real property to be assessed every two years, that amendment does not affect this case.
Section 77-1503, Comp. St. 1929, provided that such valuation shall not be changed except when all the real property of the county is assessed, unless for altered conditions, which is not alleged in this case.
“When the tax is void, either because the person assessed was not subject to taxation, or because it was assessed for an unlawful purpose, or without compliance with provisions of law imposed, it can be recovered back or treated as void in proceedings to enforce payment of tax.” Moffitt v. Reed, 124 Neb. 410" court="Neb." date_filed="1933-02-17" href="https://app.midpage.ai/document/moffitt-v-reed-8035480?utm_source=webapp" opinion_id="8035480">124 Neb. 410.
If a tax or assessment is levied without authority of law, it is, of course, void. This sometimes arises when the levy is made without a compliance with the jurisdictional requirements. It might also arise when there was no tax which the plaintiff was in equity bound to pay; as, for instance, where a city attempted to levy taxes upon property outside of its boundaries. If a tax is absolutely void, the taxpayer may, if not guilty of laches, invoke the aid of the court to protect his rights. Touzalih v. City of Omaha, 25 Neb. 817" court="Neb." date_filed="1889-01-15" href="https://app.midpage.ai/document/touzalin-v-city-of-omaha-6646078?utm_source=webapp" opinion_id="6646078">25 Neb. 817; Rothwell v. Knox County, 62 Neb. 50" court="Neb." date_filed="1901-06-05" href="https://app.midpage.ai/document/rothwell-v-county-of-knox-6653797?utm_source=webapp" opinion_id="6653797">62 Neb. 50; Wiese v. City of South Omaha, 85 Neb. 844" court="Neb." date_filed="1910-01-20" href="https://app.midpage.ai/document/wiese-v-city-of-south-omaha-6658936?utm_source=webapp" opinion_id="6658936">85 Neb. 844; Hemple v. City of Hastings, 79 Neb. 723" court="Neb." date_filed="1907-07-12" href="https://app.midpage.ai/document/hemple-v-city-of-hastings-6657618?utm_source=webapp" opinion_id="6657618">79 Neb. 723.
I have been unable to find a decision in Nebraska holding that if an assessment was too high the tax would be absolutely void. In cases where property is assessed at a higher proportion of its actual value than other property similarly located, the taxpayer should first apply to
The school district of Bennet has since its enlargement conducted an accredited high school of 12 grades. The voters must have determined that they desired such a school. It has attracted a number of pupils from nearby districts, for which this district has drawn $108 tuition annually for each pupil so attending,' amounting to over $3,000 annually. To carry on such a fine school plant requires money, but there are compensating benefits in having such a school in your own district. If the expense of conducting this high school has become excessive, relief should be sought first by having the local school-board cut down expenses and lower the school levy.
No proper steps were taken by the owner of this property, either after the assessment of the property for the year 1926 or 1930, to bring his complaint of the high assessment of his land before the board of equalization in June of either year, as provided in section 77-1702, Comp. St. 1929, and, if relief was denied, to appeal therefrom to the district court, in accordance with section 77-1705, Comp. St. 1929, and the question cannot be raised in a foreclosure of a tax lien based upon taxes against which the property owner failed to take any of the legal steps provided by our Nebraska law. There being no error in the record, the judgment of the trial court is
Affirmed.