South Platte Land Co. v. Board of County Commissioners
7 Neb. 253
Neb.
1878
Check Treatment
Gantt, Oh. ff.

This is a suit by injunction, and in the petition it is *256substantially alleged, that the county commissioners, acting as a board of equalization for the correction of errors in the listing and valuation of property, without notice and without authority, did largely increase thе assessed value of considerable portions of plaintiff’s lands, situated in the county; that unless restrained the defendants will sell said lands, and that by these proceedings a cloud is cast upon plaintiff’s title to said lands. In the court below, the defendants made their defense by answer solely upon the merits of the case, and did not question, but submitted themselves to the jurisdiction of the court.

In the case of The Bank of Utica v. The City of Utica, 4 Paige, 399, the subject matter of the action was an illegal tax, and though the complainant had a complete remedy at law, still, as the parties submitted themselves to the equity jurisdiction the chancellor passed upon the case and enjoined the collection of the tax; Utica Manufr. Co. v. Supervisors, 1 Barb., Ch. 451. When parties thus submit to the jurisdiction of a court of equity, it may perhaps be proper to pass upon the case. The general rule, however, is that a court of-equity will not entertain an aсtion by a party aggrieved for relief against an erroneous or illegal tax, unless the special circumstances of the case bring it within some acknowledged head of equity jurisdiction; namely, when the enforcеment of the assessment would lead to a multiplicity of suits, or would produce irreparable injury, or cast a cloud on the title to real estate, or when the assessment on the face of the proceеdings is valid, and requires extrinsic evidence to show it is invalid, or when the officers transcend their authority. Cooley on Taxation, 542, 543, 547, and authorities cited. Johnson v. Hahn, 4 Neb., 149.

In the case at bar, it appears from the record that the cоmmissioners, ‍​‌​​​‌‌‌‌​​‌​​‌​​​‌​​‌‌‌‌​​​​‌‌​‌​‌​​‌​​​​‌‌​​‌​‍without notice, did make new and largely *257increased assessments of plaintiff’s lands, and their action in this respect appears valid on the face of their proceedings; but if they acted in the matter without authority their proceedings are invalid, and cast a cloud on the plaintiff’s title. Cooley on Taxation, 542. Dean v. Madison, 9 Wis., 408.

Therefore the main question presented for consideration is, whether the commissioners, acting as a board of equalization, can re-assess property without giving notice to the owner. Section twenty-six of the general revenue law requires the assessors of each county to meet at the office оf the county clerk, on the first Monday of April in each year, “ for the purpose of equalizing the assessments, aud shall return their lists to the county clerk on or before the second Monday of the same month.” After this equalization is made by the assessors, the tax-payers have opportunity until the third Monday of the month to examine the assessments of their property, and any person who may feel aggrieved by anything in the proceedings of the assessors may then apply to the county board, pursuant to the provisions of section twenty-seven, for the correction of any supposed errors in the assessment of his property. Such comрlaint is in the nature of an appeal from the decisions of the assessors to the county board, and the time fixed by the statute is notice when such complaints must be heard. But it is insisted that as section twenty-seven constitutes the county commissioners also a board of equalization, and provides that, the “ said board shall have the right to raise or lower the-valuations of any or all property (except property valued by the state board) as may be deemed just and proper,”' absolute power resides in this board to re-assess property ‍​‌​​​‌‌‌‌​​‌​​‌​​​‌​​‌‌‌‌​​​​‌‌​‌​‌​​‌​​​​‌‌​​‌​‍as it may choose; and that as the statute fixes the-time when the board shall meet, it may exercise this-power without giving notice to the owner of the property. If this position were tenable, then it might be- “ *258come necessary for all the tax-payers of the county to continually attend the officе of the board throughout the entire year, in order to protect their rights of property, for the section gives the board “ power to adjourn their sessions from time to time,” without any limitation, and, therefore, no person can know at what time the board may invade his rights of property by an unjust assessment without his knowlege. Certainly such absolute power to tax the property of the citizen without notice would establish a precedent too dangerous to be tolerated, and it is not to be supposed that it was the intention of the legislature to confer on the board a power so dangerous and so liable to abuse.

Tax is propеrty, and the constitution declares that no man shall be deprived of his property without due process of law; and it is said the term means “a course of legal proceedings, according to those, rules and рrinciples which have-been established in our systems of jurisprudence for the protection and enforcement of private rights,” and, except in proceedings in rem, the party whose rights are to be affectеd in any proceeding, must be brought within the jurisdiction of the tribunal competent to pass upon the subject matter, by service of process or his voluntary appearance. But if the proposition contendеd for is maintainable, then the board, by its arbitrary act, may, without due process of law, raise the tax on property of the citizen, without limit and without his knowledge.

In Sioux C. & P. R. R. v. Washington Co., 3 Neb., 43, it is said that: “ However full and complete might be the jurisdiction of the board over the subject matter, yet the party interested has, according to the plainest principles of justice, a clear right ‍​‌​​​‌‌‌‌​​‌​​‌​​​‌​​‌‌‌‌​​​​‌‌​‌​‌​​‌​​​​‌‌​​‌​‍to a hearing and a day in court, and any other view stands opposed to reason, justice, and sound policy, and to all those general principles which, in all cases, allow a party to be heard before *259his rights of property can be affected by any tribunal. This is the universal law of the land; * * * hence, it is clear that the board can have no jurisdiction without notice to the person whose rights and interests are to be affected by its decision.”

In California the statute requires the board to meet on the first Monday in August, and provides that it may hold sessions from time to time until the second Monday in September. It also. gives the board power to add to or deduct from any valuation, whether the said sum was fixed by the owner or thе assessor. And in Patten v. Green, 13 Cal., 329, the court, in construing the statute says: “ We think it would be a dangerous precedent to hold that an absolute power resides in the supervisors to tax land as they may choose, without giving notice to the ownеr. It is a power liable to a great abuse. The general principles of law applicable to such tribunals oppose the exercise of any such power. The publication of notice of the sittings of the board amounts to no protection to the owner, for the sessions of the board are, or may be, from the first Monday in August • until the second Monday in September, and it could scarcely be* expected thаt every tax-payer is to wait upon the board all this time to see if his taxes are to be increased. The words of the statute seem to require a complaint, or some proceeding analogous to this; at least that there is something to be done, however informal, in the nature' of a controversy, or contestation, or in the nature of a judicial enquiry. There can be no considerable difficulty in giving this fiotice, and we think thе best interests of the state require it.”

It seems to me that if the proposition contended for on the part of the defendants is to be maintained it must be at the sacrifice of those great ‍​‌​​​‌‌‌‌​​‌​​‌​​​‌​​‌‌‌‌​​​​‌‌​‌​‌​​‌​​​​‌‌​​‌​‍principles upon which private rights repose for their security, and which are secured by the solemn guaranties of the constitution, and *260therefore I must conclude that the county commissioners, acting as a board of equalization, cannot interfere with those rights and re-assess property without, first giving notice to the owner.

It is further complained that the plaintiff is charged with a special tax to pay interest on Kearney precinct bonds, issued tо aid in building a bridge in said precinct, and it is alleged that this tax was levied without authority of law, and is void.

In respect of this cause of action it is only necessary to observe that in the case of The Union Pacific R. R. Co. v. Commissioners of Colfax County, 4 Neb., 450, it is held that “ a bridge of this kind is a work of internal improvement within the meaning of our statutes,” and that under section 19, chapter 9, of the Revised Statutes of 1866, and the act of February 15,1869 (Gen. Stat., 448), entitled “ an act to enable counties, cities, and precincts to borrow money on their bonds, or to issue bonds to aid in the construction or completion of works of internal ‍​‌​​​‌‌‌‌​​‌​​‌​​​‌​​‌‌‌‌​​​​‌‌​‌​‌​​‌​​​​‌‌​​‌​‍improvements in this state,” counties and precincts may, in conformity with the provisions of these statutes, issue bonds to aid in the construction of a public bridge, and that when so issued “ the bonds will be valid.” And the statute specially provides that when such bonds are issued by a precinct, “ the tax to pay the same shall be levied upon the property within the bounds of such precinct.” Fremont Building Association v. Sherwin, 6 Neb., 50. Therefore, according to the statute and the law as' settled by this court, the tax to pay the interest on these bonds was legally and properly levied on thе property within the bounds of the precinct.

Degree: This cause came on for hearing, on appeal from the district court of Kearney county, and was argued by counsel, and now, on manure considerаtion thereof, this court finds that the proceedings oí the county commissioners, at their session in April, *2611874, acting as a board of equalization for said county, in raising the assessments on the lands of the plaintiff, to-wit: the north-east quarter and the south-east quarter of section two, in township eight north, of range sixteen west, the north half of the north-west quarter, and the north half of the northeast quarter, and lots one, two, three, and four, in section eleven, in township eight north, of range sixteen west, acted in the matter without notice to the plaintiff, and consequently without jurisdiction of the plaintiff or the subject matter. It is therefore ordered and decreed that the dеfendants, and each of them, be perpetually enjoined from collecting, or in any way enforcing the collection, of any and all taxes levied on said increased amount of assessments upon said lands of the plaintiff, and that said additional or increased assessments so made by said board be deemed, and are hereby declared to be, void, and of no effect. And it is further ordered and decreed that the petition of the plaintiff, so far as it relates to the tax levied to pay the the interest on the bridge bonds issued by Kearney precinct, be and the same is hereby dismissed.