Mylet v. Platte County

170 N.W. 615, 103 Neb. 105, 1919 Neb. LEXIS 12

Opinions

Rose, J.

This is a suit by a taxpayer to enjoin the supervisors of Platte county from entering into a contract for the wrecking of the courthouse at Columbus and for the erection of a new courthouse on the old site. The application for the injunction is based in part on the plea that the petition of the electors for annual levies to create the fund for the contemplated improvement is fatally defective. The injunction was resisted on the ground that defendants proceeded regularly under authority of law. The injunction was granted, and defendants have appealed.

The controversy grows out of different views of the statutes relating to the construction of a courthouse and to the creation of funds for that purpose. Defendants asumed to act under the following grant of power:

“Provided, that the county board of any county in this state is hereby authorized and empowered, when requested' so to do by a petition signed by at least fifty-five per cent, of the legal voters in said county based on the average vote of the two preceding general elections, to make an annual levy not exceeding five mills upon the dollar on all taxable property in said county for the purpose of providing a fund for the erection of a courthouse or jail, said fund to be used only in the construction of a courthouse or jail or to pay the expenses of tearing down an existing courthouse or jail or making improvements thereon; provided further, the total estimated amount to be raised by such special levy shall not exceed the sum of one hundred thousand ($100,000) dollars and said levy may be spread over a term of years not exceeding five to produce such sum, but in no cáse shall the levy of taxes made by the county board for all purposes, including the taxes levied herein provided for the erection of a courthouse or jail, exceed in any one year the sum of fifteen mills of the dollar of the assessed valuation of said county.” Laws 1915, eh. 18.

The petition containing the request for an annual levy to provide a building fund is in the following form:

“We, the • undersigned legal voters of Platte county, Nebraska, hereby request the board of supervisors of Platte county, Nebraska, to erect and provide a suitable county courthouse and jail in and for said county. To provide" a fund for that purpose, we further request said county board to make an annual levy, not exceeding 5 mills on the dollar on all taxable property in said county, provided that the total estimated amount to be raised by such special levy shall not exceed the sum of $100,000 and said levy may be' spread over a term of years not exceeding five to produce such sum, but in no case shall levy of taxes made by the county board for all purposes including the taxes levied for said courthouse and jail exceed, in any one year, the sum of 15 mills on the dollar of assessed valuation of said county.

“It is agreed and understood that said courthouse is to be located in its present location, viz., block No. D. Columbus, Nebraska.”

The petition required by statute is jurisdictional. Without it the county board has no- authority to levy the necessary taxes. In making the request the petitioners were not authorized to impose terms as a condition of authorizing a levy. An unconditional petition is required. In requesting the levy the petitioners departed from the statute and assumed to impose the following terms as a condition of conferring power to make the levy: “It is agreed and understood that said courthouse is to be located in its present location.” Was the petition containing this restriction sufficient to confer on the county board jurisdiction to make the levy? The power to select the courthouse site had been conferred upon the county board. The statutory grant has not been amended or repealed. Under the petition the authority to select a new location is taken away from the county hoard. The restriction in regard to the location cannot be treated as surplusage, because the statutory request for the levy depends on the condition. In other words, authority to make the annual levy is not granted unless the old location is retained, thus depriving the- county hoard of its power to select a new site. There is nothing to indicate that the jurisdictional petition would have been signed by the requisite number of electors with the condition as to location omitted. The petition, therefore, was insufficient to confer upon the county hoard jurisdiction to make an annual levy for the purpose of creating a courthouse fund. For this reason the injunction wTas properly allowed.

Aketbmed.