Trumble v. Sarpy County Board

D wight trumble , appellant anD cross -appellee , v.
sarpy county boarD et al ., appellees , anD
D ouglas county school D istrict 0001,
also known as omaha public schools ,
appellee anD cross -appellant.
810 N.W.2d 732
Filed March 16, 2012. 	No. S-10-1235.
1. Motions to Dismiss: Jurisdiction: Appeal and Error. Aside from factual find-
ings, the granting of a motion to dismiss for a lack of subject matter jurisdiction
is subject to a de novo review.
2. Judgments: Statutes: Appeal and Error. To the extent an appeal calls for statu-
tory interpretation or presents questions of law, an appellate court must reach its
conclusion independent of the trial court.
3. Constitutional Law: Declaratory Judgments: Taxes. The proper means of
challenging the constitutionality of a tax statute is a declaratory judgment action
under Neb. Rev. Stat. § 25-21,149 (Reissue 2008).
4. Statutes: Appeal and Error. Statutory interpretation is a matter of law in con-
nection with which an appellate court has an obligation to reach an independent,
correct conclusion irrespective of the determination made by the court below.
5. ____: ____. In the absence of anything to the contrary, statutory language is to
be given its plain and ordinary meaning; an appellate court will not resort to
interpretation to ascertain the meaning of statutory words which are plain, direct,
and unambiguous.
6. Statutes: Legislature. When the Legislature provides a specific definition for
purposes of a section of an act, that definition is controlling.
7. Statutes. To the extent there is a conflict between two statutes on the same sub-
ject, a specific statute prevails over a general statute.
8. Taxes: Statutes: Words and Phrases. A tax can meet the specific definition
of “illegal” in Neb. Rev. Stat. § 77-1735 (Reissue 2009) if it is either col-
lected for a purpose that is “unauthorized” or levied because of conduct that
was “fraudulent.”
9. Statutes: Legislature: Intent. In discerning the meaning of a statute, a court
must determine and give effect to the purpose and intent of the Legislature as
ascertained from the entire language of the statute considered in its plain, ordi-
nary, and popular sense.
10. ____: ____: ____. When considering a series or collection of statutes pertaining
to a certain subject matter, which statutes are in pari materia, they may be con-
junctively considered and construed to determine the intent of the Legislature, so
that different provisions of the act are consistent and sensible.
11. Statutes: Legislature: Presumptions. In enacting an amendatory statute, the
Legislature is presumed to have known the preexisting law.
12. Statutes: Judicial Construction: Legislature: Presumptions: Intent. When an
appellate court judicially construes a statute and that construction fails to evoke
an amendment, it is presumed that the Legislature has acquiesced in the court’s
determination of the Legislature’s intent.
486 	283 NebRASkA RepoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

Appeal from the District Court for Sarpy County: william
b. Z astera, Judge. Affirmed.
Matthew V. Rusch and Thomas J. Culhane, of erickson &
Sederstrom, p.C., for appellant.
kenneth W. Hartman, elizabeth eynon-kokrda, and kelly
R. Dahl, of baird Holm, L.L.p., for appellee Douglas County
School District 0001.
patrick J. Sullivan and benjamin e. Maxell, of Adams &
Sullivan, p.C., for appellee School District No. 1 of Sarpy
County.
heavican, c.J., wright, connolly, gerrarD, stephan, and
mccormack , JJ., and sievers , Judge.
wright, J.
NATURe oF CASe
At all times relevant to this case, Dwight Trumble owned
property in Sarpy County, Nebraska. on December 31, 2009,
he paid two levies for the support of school districts in the
Learning Community of Douglas and Sarpy Counties (Learning
Community): a general fund levy and a special building
fund levy.
on April 26, 2010, Trumble brought suit under Neb. Rev.
Stat. § 77-1735 (Reissue 2009) against the school districts
in the Learning Community, claiming the levies, which were
authorized by Neb. Rev. Stat. § 77-3442(2)(b) and (g) (Reissue
2009), were unconstitutional. Douglas County School District
0001, also known as omaha public Schools (opS), and School
District No. 1 of Sarpy County (bellevue) moved to dismiss,
and Trumble moved for summary judgment. The district court
determined it did not have jurisdiction and dismissed the case.
because Trumble alleged the unconstitutionality of a statute, he
appealed directly to this court. For the reasons set forth herein,
we affirm.
SCope oF ReVIeW
[1,2] Aside from factual findings, the granting of a motion
to dismiss for a lack of subject matter jurisdiction is subject
TRUMbLe v. SARpy CoUNTy boARD 	487
Cite as 283 Neb. 486

to a de novo review. StoreVisions v. Omaha Tribe of Neb., 281
Neb. 238, 795 N.W.2d 271 (2011). To the extent an appeal
calls for statutory interpretation or presents questions of law,
an appellate court must reach its conclusion independent of the
trial court. State v. Mena-Rivera, 280 Neb. 948, 791 N.W.2d
613 (2010).
FACTS
The levies at issue in this case were also challenged in Sarpy
Cty. Farm Bureau v. Learning Community, ante p. 212, 808
N.W.2d 598 (2012). They empower the Learning Community
to levy up to $0.95 per $100 of taxable valuation for the gen-
eral fund budgets of Learning Community school districts and
$0.02 per $100 of taxable valuation for special building funds
for Learning Community school districts.
In August 2009, the Learning Community adopted a $0.95
general fund levy and a $0.01 special building fund levy, and
in october, the Sarpy County board of equalization included
these levies in the county’s 2009 tax levies. Trumble paid the
Sarpy County levies on December 31, 2009. on January 11,
2010, Trumble made a written demand to the Sarpy County
treasurer for the return of that portion of his property tax
attributable to the Learning Community levies. He made this
demand under § 77-1735, claiming the Learning Community
levies were unconstitutional. Under § 77-1735(1),
if a person makes a payment to any county or other politi-
cal subdivision of any property tax . . . and claims the
tax or any part thereof is illegal for any reason other than
the valuation or equalization of the property, he or she
may, at any time within thirty days after such payment,
make a written claim for refund of the payment from the
county treasurer to whom paid. . . . If the payment is not
refunded within ninety days thereafter, the claimant may
sue the county board for the amount so claimed. . . . For
purposes of this section, illegal shall mean a tax levied
for an unauthorized purpose or as a result of fraudulent
conduct on the part of the taxing officials.
The Sarpy County treasurer did not respond to Trumble’s
request for repayment, and Trumble filed suit on April 26,
488 	283 NebRASkA RepoRTS

2010. He alleged that § 77-3442(2)(b) and (g) and Neb. Rev.
Stat. §§ 79-1073 and 79-1073.01 (Supp. 2009), which autho-
rized the collection and dictated the distribution of general
fund and special building fund levies for a learning community,
were unconstitutional. Trumble sought a judgment that these
statutes were unconstitutional and that the taxes he paid under
the statutes had to be returned pursuant to § 77-1735 and Neb.
Rev. Stat. § 77-1736.06 (Reissue 2009).
on September 24, 2010, opS and bellevue each moved to
dismiss for lack of subject matter jurisdiction, failure to state
a claim on which relief could be granted, and failure to join
a necessary party. Trumble moved for summary judgment on
September 27. on october 18, the district court overruled a
motion filed by opS to continue Trumble’s summary judgment
motion and took opS’ and bellevue’s motions to dismiss under
advisement. The next day, the district court heard Trumble’s
summary judgment motion.
[3] The district court issued its order on December 14,
2010. It determined that “unconstitutional” taxes were not
“illegal” taxes that could be recovered under § 77-1735 and
that the proper means of challenging the constitutionality of a
tax statute was a declaratory judgment action under Neb. Rev.
Stat. § 25-21,149 (Reissue 2008). That section states in part:
“Any action or proceeding seeking a declaratory judgment that
any tax, penalty, or part thereof is unconstitutional shall be
brought in the tax year in which the tax or penalty was levied
or assessed.” Id. The district court held that it lacked juris-
diction because Trumble had not alleged the collection of an
“unauthorized” or “illegal” tax under § 77-1735 and because
Trumble filed the action outside the tax year when the taxes
were levied.
The district court relied on AMISUB v. Board of Cty. Comrs.
of Douglas Cty., 244 Neb. 657, 508 N.W.2d 827 (1993). The
district court concluded that in AMISUB, this court deter-
mined that Neb. Rev. Stat. § 77-1736.04 (Cum. Supp. 1992),
rather than § 77-1735, was the proper means of challenging
the constitutionality of a tax already paid. The district court
recognized that § 77-1736.04 has since been repealed, but
determined that the interpretation in AMISUB of § 77-1735
TRUMbLe v. SARpy CoUNTy boARD 	489
Cite as 283 Neb. 486

was still good law following the repeal of § 77-1736.04. The
district court granted the motions to dismiss, denied Trumble’s
request for summary judgment, and dismissed the complaint.
Trumble appealed.
ASSIGNMeNTS oF eRRoR
Trumble alleges the district court erred in determining it
lacked jurisdiction and dismissing the complaint. on cross-
appeal, 	opS 	alleges 	the 	district 	court 	lacked 	jurisdiction
because Trumble’s complaint raised nonjusticiable political
questions. opS also alleges the district court erred in denying
opS’ motion to continue the hearing on Trumble’s summary
judgment motion.
ANALySIS
mootness
We first consider whether this case is moot because of our
decision in Sarpy Cty. Farm Bureau v. Learning Community,
ante p. 212, 808 N.W.2d 598 (2012). In Sarpy Cty. Farm
Bureau, the taxpayers sought a declaratory judgment that
the levy was unconstitutional. We upheld the constitution-
ality of § 77-3442(2)(b) against the same challenges that
Trumble raises here. However, in Sarpy Cty. Farm Bureau, this
court specifically refused to rule on the constitutionality of
§§ 77-3442(2)(g) and 79-1073.01 because that issue was not
raised before the trial court. because Trumble questioned the
constitutionality of §§ 77-3442(2)(g) and 79-1073.01 before
the district court, this cause is squarely in front of this court
and is not moot.
JurisDiction
[4,5] before any court can determine the constitutionality
of a tax statute, the court must have subject matter jurisdic-
tion. Trumble argues the district court should have ruled in his
favor under § 77-1735. Statutory interpretation is a matter of
law in connection with which an appellate court has an obli-
gation to reach an independent, correct conclusion irrespec-
tive of the determination made by the court below. AMISUB,
supra. In assessing the meaning of a statute, we are guided by
the principle that in the absence of anything to the contrary,
490 	283 NebRASkA RepoRTS

statutory language is to be given its plain and ordinary mean-
ing; an appellate court will not resort to interpretation to
ascertain the meaning of statutory words which are plain,
direct, and unambiguous. Moats v. Republican Party of Neb.,
281 Neb. 411, 796 N.W.2d 584 (2011).
[6,7] Trumble contends that an “unconstitutional” tax is an
“illegal” tax under § 77-1735. Section 77-1735(1) provides its
own definition of “illegal” for purposes of this section. When
the Legislature provides a specific definition for purposes of a
section of an act, that definition is controlling. See AMISUB
v. Board of Cty. Comrs. of Douglas Cty., 244 Neb. 657, 508
N.W.2d 827 (1993). This is a natural extension of the principle
that “[t]o the extent there is a conflict between two statutes on
the same subject, a specific statute prevails over a general stat-
ute.” Id. at 663, 508 N.W.2d at 832.
[8] A tax can meet the specific definition of “illegal” in
§ 77-1735 if it is either collected for a purpose that is “unau-
thorized” or levied because of conduct that was “fraudulent.”
“[F]raudulent” means “given to or using fraud, as a person;
cheating; dishonest . . . characterized by, involving, or proceed-
ing from fraud, as actions, enterprise, methods, gains, etc.”
Webster’s encyclopedic Unabridged Dictionary of the english
Language 564 (1989). An “unconstitutional” tax would not fit
within this definition. “[U]nauthorized,” however, means “not
authorized,” Webster’s Third New International Dictionary of
the english Language, Unabridged 2482 (1993), or “[d]one
without authority,” black’s Law Dictionary 1663 (9th ed. 2009).
Trumble’s argument in support of his claim that this lawsuit is
allowed under § 77-1735 requires three steps: (1) The taxes
permitted by § 77-3442(2)(b) and (g) are unconstitutional;
(2) since they are unconstitutional, they are “unauthorized”;
and (3) since they are “unauthorized,” they fall within the
§ 77-1735 definition of “illegal.”
[9] In discerning the meaning of a statute, a court must
determine and give effect to the purpose and intent of the
Legislature as ascertained from the entire language of the stat-
ute considered in its plain, ordinary, and popular sense. Newman
v. Thomas, 264 Neb. 801, 652 N.W.2d 565 (2002). There is
support in the text of § 77-1735 for excluding constitutional
TRUMbLe v. SARpy CoUNTy boARD 	491
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challenges under that statute. The fact that “unauthorized” is
used together with “fraudulent” in the definition of “illegal”
indicates that “unauthorized” should be interpreted in light of
the meaning of “fraudulent” to avoid reading the statute to say
more than the Legislature intended. See U.S. v. Stanko, 491
F.3d 408 (8th Cir. 2007).
As late as 1993, this court determined that § 77-1735 could
be used to challenge an unconstitutional tax. See First Data
Resources v. Howell, 242 Neb. 248, 494 N.W.2d 542 (1993).
After First Data Resources, the Legislature amended § 77-1735.
See AMISUB, supra. The amendments eliminated language
allowing for the recovery of “invalid” taxes and instead allowed
for recovery of “illegal” taxes, with the term “illegal” defined
as it is under the current statute. See, id.; § 77-1735. Following
these textual changes, this court determined that § 77-1735 had
a different meaning. AMISUB, supra.
In AMISUB, this court rejected the argument that an “uncon-
stitutional” tax was an “unauthorized” tax and therefore an
“illegal” tax that could be challenged under the amended ver-
sion of § 77-1735. That determination was heavily influenced
by § 77-1736.04, which once allowed for the recovery of
illegal taxes. See AMISUB, supra. The same bill that changed
“invalid” to “illegal” in § 77-1735 (1989 Neb. Laws, L.b. 762)
also changed “illegal” to “unconstitutional” in § 77-1736.04.
The Legislature later amended § 77-1736.04, but the statute
continued to provide the procedure for challenging “uncon-
stitutional” taxes. See AMISUB v. Board of Cty. Comrs. of
Douglas Cty., 244 Neb. 657, 508 N.W.2d 827 (1993).
[10] When considering a series or collection of statutes
pertaining to a certain subject matter, which statutes are
in pari materia, they may be conjunctively considered and
construed to determine the intent of the Legislature, so that
different provisions of the act are consistent and sensible.
Id. To the extent there is a conflict between two statutes
on the same subject, a specific statute prevails over a gen-
eral statute. Id. Considering §§ 77-1735 and 77-1736.04
together, this court concluded in AMISUB that the Legislature
meant to treat refunds for “unconstitutional” taxes differ-
ently than refunds for “unauthorized” taxes or taxes that were
492 	283 NebRASkA RepoRTS

fraudulently levied. Accordingly, § 77-1735 was determined
to be an improper means for challenging “unconstitutional”
taxes. AMISUB, supra.
Shortly after the AMISUB opinion was filed, the Legislature
repealed § 77-1736.04 entirely. See 1992 Neb. Laws, L.b. 1,
§ 44. Trumble claims that with the repeal of § 77-1736.04,
§ 77-1735 once again allows a lawsuit to recover “unconstitu-
tional” taxes. We are not persuaded by this argument.
In 	AMISUB, 	this 	court 	noted 	that 	the 	more 	important
legislative changes brought about by L.b. 762 occurred in
§ 77-1736.04 rather than § 77-1735. We do not read §§ 77-1735
and 77-1736.04 as being so closely connected that the repeal
of § 77-1736.04 also nullified this court’s reading of § 77-1735
in AMISUB.
The AMISUB court interpreted two statutes that had been
amended by the same bill. See L.b. 762, §§ 3 and 4. The
Legislature has since made several changes to § 77-1735, none
of which eliminated the term “illegal” from the statute or gave
the term a different definition. See, 1991 Neb. Laws, L.b. 829,
§ 13; 1992 Neb. Laws, L.b. 1, § 16; 1995 Neb. Laws, L.b. 490,
§ 166; 2007 Neb. Laws, L.b. 334, § 81.
[11] In enacting an amendatory statute, the Legislature is
presumed to have known the preexisting law. State v. Suhr,
207 Neb. 553, 300 N.W.2d 25 (1980). This court determined
in AMISUB, supra, that § 77-1735 did not allow for the recov-
ery of “unconstitutional” taxes. Then the Legislature repealed
§ 	77-1736.04. 	Twice 	after 	that, 	the 	Legislature 	amended
§ 77-1735, and both times, it retained the term “illegal” and
left the definition of “illegal” unchanged. See, L.b. 490, § 166;
L.b. 334, § 81.
[12] Trumble would have us read §§ 77-1735 and 77-1736.04
to 	be 	so 	connected 	that 	when 	the 	Legislature 	repealed
§ 77-1736.04, it changed the meaning of § 77-1735 without
changing the definition of “illegal” in § 77-1735. This court
assumes the opposite. When we judicially construe a statute
and that construction fails to evoke an amendment, we presume
that the Legislature has acquiesced in our determination of its
intent. See Underhill v. Hobelman, 279 Neb. 30, 776 N.W.2d
786 (2009). And we presume that when we have construed
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Cite as 283 Neb. 486

a statute and the same statute is substantially reenacted, the
Legislature gave to the language the significance we previ-
ously accorded to it. Id. In other words, we presume that the
meaning of a statute does not change unless the Legislature
changes its text. because the Legislature retained the relevant
text of § 77-1735 following AMISUB v. Board of Cty. Comrs.
of Douglas Cty., 244 Neb. 657, 508 N.W.2d 827 (1993), the
Legislature acquiesced in this court’s interpretation of that text
and the AMISUB court’s interpretation of § 77-1735 remains
good law.
We conclude that § 77-1735 is not applicable because it
allows recovery for fraudulently levied taxes, but does not
allow recovery for unconstitutional taxes.
We have considered the applicability of § 77-1735 in situa-
tions where the question of the constitutionality of a tax statute
was not before us. In Boettcher v. Balka, 252 Neb. 547, 567
N.W.2d 95 (1997), the plaintiff brought a declaratory judgment
action instead of filing suit under § 77-1735. This court deter-
mined that § 77-1735 provided another “equally serviceable
remedy,” see 252 Neb. at 552, 567 N.W.2d at 99, which made a
declaratory judgment action inappropriate. However, Boettcher
does not control the case at bar. The plaintiff in Boettcher did
not follow the procedures required by § 77-1735 or assign any
constitutional errors for review, and this court did not discuss
AMISUB or whether a suit could be brought under § 77-1735
to recover unconstitutional taxes.
Similarly, Rawson v. Harlan County, 247 Neb. 944, 530
N.W.2d 923 (1995), does not control the result here. In Rawson,
the taxpayer requested a declaratory judgment to determine
that the tax was illegal and unauthorized. In that context, we
determined that § 77-1735 was a proper way to challenge a tax
that had been paid and that, therefore, the district court lacked
jurisdiction to hear a declaratory judgment action. This court
did not reach the question whether the challenged tax was
“illegal” or “unauthorized.” We did not discuss AMISUB or
determine whether a suit could be brought under § 77-1735 to
recover “unconstitutional” taxes.
The case at bar presents what Boettcher and Rawson lacked:
a plaintiff who sought relief under § 77-1735 and raised a
494 	283 NebRASkA RepoRTS

constitutional claim. This case presents us with the question
whether a suit can be brought under § 77-1735 to recover
“unconstitutional” taxes. We answer that question in the nega-
tive. The district court correctly determined it did not have
jurisdiction under § 77-1735.
Section 77-1735 does not provide an adequate remedy for
recovering an unconstitutional tax. A declaratory judgment
is the proper method to challenge the constitutionality of a
tax statute. See, Boettcher, supra; Rawson, supra. Such an
action would have to be brought within the time constraints of
§ 25-21,149, which requires that declaratory judgment actions
challenging the constitutionality of tax statutes have to be
brought in the same tax year in which the taxes are levied
or assessed. For completeness, we note that Trumble’s argu-
ment that Francis v. City of Columbus, 267 Neb. 553, 676
N.W.2d 346 (2004), supports his position fails because Francis
addressed Neb. Rev. Stat. § 16-637 (Reissue 2007) rather than
§ 77-1735.
In this case, the relevant tax year is calendar year 2009.
Trumble’s tax bills were received and paid in 2009. The
receipts for Trumble’s tax payments were dated 2009. Nebraska
property taxes are due on December 31 of the calendar year in
which they are levied, and they become a first lien on the prop-
erty until paid or extinguished. See Neb. Rev. Stat. § 77-203
(Reissue 2009). The taxes at issue here were levied in tax
year 2009, and Trumble’s suit was filed in 2010. because the
suit was not brought in the same tax year in which the taxes
were levied or assessed, the district court did not have jurisdic-
tion under § 25-21,149. The district court lacked jurisdiction
under §§ 25-21,149 and 77-1735, and it properly dismissed
the complaint.
cross -appeal
because the district court lacked jurisdiction, we need not
consider opS’ cross-appeal.
CoNCLUSIoN
based on the text of § 77-1735; this court’s opinion in
AMISUB v. Board of Cty. Comrs. of Douglas Cty., 244 Neb.
657, 	508 	N.W.2d 	827 	(1993); 	and 	subsequent 	legislative
TRUMbLe v. SARpy CoUNTy boARD 	495
Cite as 283 Neb. 486

amendments, we conclude that a suit to recover unconstitu-
tional taxes cannot be brought under § 77-1735. Trumble filed
suit outside the tax year in which the challenged taxes were
levied or assessed, so the district court did not have jurisdiction
under § 25-21,149. Since the district court lacked jurisdiction,
it properly dismissed the action. The judgment of the district
court is affirmed.
affirmeD.
gerrarD, J., not participating in the decision.
miller-lerman, J., not participating.
big John’s billiarDs , inc., appellee anD
cross -appellant, v. state of nebraska et al .,
appellants anD cross -appellees.
811 N.W.2d 205
Filed March 16, 2012. 	No. S-11-077.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual
dispute presents a question of law.
2. Judgments: Appeal and Error. An appellate court independently reviews ques-
tions of law decided by a lower court.
3. Jurisdiction: Appeal and Error. before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
4. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final order entered by the court from
which the appeal is taken; conversely, an appellate court is without jurisdiction to
entertain appeals from nonfinal orders.
5. Jurisdiction: Appeal and Error. If the court from which an appeal was taken
lacked jurisdiction, then the appellate court acquires no jurisdiction.
6. Jurisdiction: Final Orders: Appeal and Error. The first step in determining the
existence of appellate jurisdiction is to determine whether the lower court’s order
was final and appealable.
7. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902 (Reissue
2008), the three types of final orders that an appellate court may review are (1) an
order that affects a substantial right and that determines the action and prevents
a judgment, (2) an order that affects a substantial right made during a special
proceeding, and (3) an order that affects a substantial right made on summary
application in an action after a judgment is rendered.
8. Summary Judgment. A summary judgment motion does not invoke a special
proceeding. Instead, a summary judgment proceeding is a step in the over-
all action.
496 	283 NebRASkA RepoRTS