78 Neb. 703 | Neb. | 1907
Since 1882, Heman Burgess, whom we shall call the defendant, has been the owner of a tract of land containing about 12 acres, lying near the original corporate limits of the city of Plattsmouth. It has never been platted or subdivided into lots, and has been used exclusively for agricultural purposes. In 1888 the city in pursuance of the provisions of chapter 14, laws of 1885, entitled “An act to amend the title and sections 1, 2, 3, and 4 of an act entitled ‘An act to provide for the organization, government, and powers of cities of the second class having more
The amendatory act of 1885 was declared unconstitutional in Webster v. City of Hastings, 59 Neb. 563. The general rule is that an unconstitutional statute is invalid from its inception, and as ineffectual as though it had never passed. Boales v. Ferguson, 55 Neb. 565; Finders v. Bodle, 58 Neb. 57. As was said in Horton v. Shelby County, 118 U. S. 425: “It confers no rights; it imposes no duties; it affords no protection; * * * it is, in legal contemplation, as inoperative as though it had never been passed.” It would follow, then, that the amendatoryact of 1885, under which the city attempted to extend its limits by ordinance so as to include defendant’s land, conferred no authority to annex adjacent territory by ordinance, and, as there was no valid law then in force conferring such authority, that the attempted annexation was unauthorized. As was said in Chicago, B. & Q. R. Co. v. City of Nebraska City, 53 Neb. 453: “It is a familiar doctrine that municipal corporations can exercise only
But it is contended that the validity of the annexation proceedings cannot be impeached collaterally by a private individual. This contention seems to be met and disposed of by the case just cited, but authorities are not wanting to sustain it. Such authorities, however, so far as we have been able to examine them, are cases where the city had authority to annex the territory, but exercised it irregularly, or Avhere the annexation proceedings had been acquiesced in for so long a time that public and private rights had intervened, Avhich would be injuriously affected by an annulment of the proceedings. But this is a case, not of an irregular exercise of lawful authority, but of a "want of laAvful authority, and the annexation proceedings, therefore, Avere not merely defective and voidable;, but ultra vires and void. Neither have any public or private rights intervened Avliieh Avould be prejudiced by a refusal to recognize the jurisdiction of the city over the property in question. So far as the record discloses, the city has laid out no streets, made no improvements, and expended no money on this property, and has made no attempt to exercise jurisdiction over it, save by levying taxes against it. Neither does it appear that the city has expended any money, incurred any liability, or changed its position to its prejudice in any way on the assumption that the defendant’s land was subject to taxation for city purposes. What"taxes were paid by the defendant for that
Another contention of counsel for the state is that Ihe validity of the annexation ordinance cannot be assailed in this proceeding, because the jurisdiction of the court to declare a tax void in proceedings under the scavenger act is expressly limited to cases where the property was exempt from taxation, or the levy made for an illegal or unauthorized purpose, or the tax was based on fraud, gross injustice, or mistake. See Comp. St. 1905, ch. 77, art. IX, sec. 15. We do not deem it necessary to undertake to define the jurisdiction of the court in a proceeding of this character, nor to determine whether the grounds upon which it can relieve against void taxes are limited to those just enumerated, because this case easily falls within those limitations. If the taxes were levied in the belief that the property was subject to city taxation, they were based upon mistake; if they were levied by the city authorities with knowledge that the property was outside the city limits, and not subject to city taxation, they were based on fraud. Besides, it was held in Thatcher v. County of Adams, 19 Neb. 485, that school district taxes levied upon real estate outside the district were levied for an unauthorized purpose, within the meaning of the revenue act. On the authority of that case, the taxes in question may be said to have been levied for an unauthorized purpose within the meaning of the scavenger act.
The equities are with the defendant. His land is unplatted. It is used exclusively for agricultural purposes. It derives no benefit from the city government. No fact or circumstance is shown justifying an application of the hard doctrine of necessity or estoppel. The taxes are void, and the district court erred in decreeing their enforcement.
It is therefore recommended that the decree of the district court be reversed and the cause remanded, with di
By the Court: For the reasons stated in the foregoing opinion, the decree of the district court is reversed and the cause remanded, with directions to enter a decree in conformity herewith.
Reversed.