77-1727. Collection of taxes; injunction and replevin prohibited; exceptions.

No injunction shall be granted by any court or judge in this state (1) to restrain the collection of any tax, or any part thereof, or (2) to restrain the sale of any property for the nonpayment of any such tax.

No person shall be permitted to recover by replevin, or other process, any property taken or restrained by the county treasurer for the nonpayment of any tax, except such tax or the part thereof enjoined in case of injunction, levied or assessed for illegal or unauthorized purpose.

No injunction shall be granted or recovery by replevin shall be permitted unless the person has first successfully argued before a court of competent jurisdiction that the tax levied or collected was levied or assessed for illegal or unauthorized purpose.

Source

Annotations

1. Injunction proper

2. Injunction not proper

3. Miscellaneous

1. Injunction proper

Injunctive relief is only available where a tax is void or levied for an illegal or unauthorized purpose. Ganser v. County of Lancaster, 215 Neb. 313, 338 N.W.2d 609 (1983).

Injunction was proper where land sought to be assessed did not derive any benefit from new water main. Wiborg v. City of Norfolk, 176 Neb. 825, 127 N.W.2d 499 (1964).

Where value of property is increased without notice to owner, collection of tax on increase may be enjoined. Babin v. County of Madison, 161 Neb. 536, 73 N.W.2d 807 (1955).

Where tax is void for want of jurisdiction, injunction is proper. Offutt Housing Co. v. County of Sarpy, 160 Neb. 320, 70 N.W.2d 382 (1955).

Where special assessments against railroad right-of-way were illegal, injunction would lie. Chicago & N. W. Ry. Co. v. City of Omaha, 156 Neb. 705, 57 N.W.2d 753 (1953).

Injunction can issue against void occupation tax. Best & Co., Inc. v. City of Omaha, 149 Neb. 868, 33 N.W.2d 150 (1948).

Where tax is illegal, injunction will lie. State Bank of Omaha v. Endres, 109 Neb. 753, 192 N.W. 322 (1923).

Injunction will lie where tax is levied and assessed for an unauthorized purpose. Union Pac. R. R. Co. v. Troupe, 99 Neb. 73, 155 N.W. 230 (1915).

Taxes levied on property outside taxing district are for unauthorized purpose, and collection may be restrained. Hemple v. City of Hastings, 79 Neb. 723, 113 N.W. 187 (1907); Chicago, B. & Q. R. R. Co. v. Cass County, 51 Neb. 369, 70 N.W. 955 (1897).

Taxes designedly levied to be transferred to another fund are illegal and may be enjoined. Chicago, B. & Q. R. R. Co. v. Lincoln County, 66 Neb. 228, 92 N.W. 208 (1902).

When the assessment was without jurisdiction, injunction is proper. Rothwell v. Knox County, 62 Neb. 50, 86 N.W. 903 (1901).

Where tax is void, injunction is proper. Grand I. & W. C. R. R. Co. v. Dawes County, 62 Neb. 44, 86 N.W. 934 (1901).

Sale of land for void special assessment may be enjoined. Ives v. Irey, 51 Neb. 136, 70 N.W. 961 (1897).

2. Injunction not proper

Injunctive relief is available only where a tax is void, that is, where the taxing body does not have jurisdiction or power to impose the tax. Jones v. State, 248 Neb. 158, 532 N.W.2d 636 (1995).

Payment of taxes on land assessed by board of equalization cannot be avoided without showing land was exempt or other valid reason. Radium Hospital v. Greenleaf, 118 Neb. 136, 223 N.W. 667 (1929).

Injunction will not lie to restrain collection of taxes on cattle in county in which they were being fed. Delatour v. Smith, 116 Neb. 695, 218 N.W. 731 (1928).

Injunction to restrain treasurer from refunding tax paid under protest was not proper when petition did not show county board was acting without jurisdiction. School Dist. No. 25 of Brown County v. DeLong, 80 Neb. 667, 114 N.W. 934 (1908).

Injunction will not lie to restrain collection of taxes unless levied for unauthorized or illegal purpose, or when assessment is void. Union P. R. R. Co. v. Cheyenne County, 64 Neb. 777, 90 N.W. 917 (1902); Philadelphia M. & T. Co. v. City of Omaha, 63 Neb. 280, 88 N.W. 523 (1901).

Taxes, assessed for sidewalk, are not for illegal or unauthorized purpose, and injunction will not lie. Wilson v. City of Auburn, 27 Neb. 435, 43 N.W. 257 (1889).

Injunction will not be granted unless tax is void or inequitable. South Platte Land Co. v. City of Crete, 11 Neb. 344, 7 N.W. 859 (1881).

If legal tax can be separated from illegal, collection of entire tax will not be restrained. Burlington & M. R. R. Co. v. York County, 7 Neb. 487 (1878).

Special assessment levied against railroad was a tax which federal court would not enjoin. Chicago, St. P., M. & O. Ry. Co. v. City of Randolph, 122 F.Supp. 302 (D. Neb. 1954).

3. Miscellaneous

This section governs suits by taxpayers who seek to restrain the collection of any tax. Rawson v. Harlan County, 247 Neb. 944, 530 N.W.2d 923 (1995).

Tax levied by district which had been merged with city was within exception. Abernathy v. City of Omaha, 183 Neb. 660, 163 N.W.2d 579 (1968).

The prohibition against use of remedy of replevin has no application to strangers to the tax whose property has been distrained for the taxes of another. Landis Machine Company v. Omaha Merchants Transfer Co., 142 Neb. 389, 9 N.W.2d 198 (1943).

Action to quiet title and remove cloud, directed against apparent lien of tax, is only maintainable when tax is void. Philadelphia M. & T. Co. v. Omaha, 65 Neb. 93, 90 N.W. 1005 (1902).

Validity of statute imposing tax on air-flight equipment could be tested by injunction. Mid-Continent Airlines v. Nebraska State Board of Equalization, 105 F.Supp. 188 (D. Neb. 1952).