dissenting.
Having an abiding conviction that the judgment of the district court is without any foundation whatever in fact, law or justice, we solemnly protest against the adoption of the opinion directing the affirmance of it.
The claim resulting in the affirmed judgment against Lincoln county for $12,271.64, is a demand for a refund of void taxes levied on the Masonic Temple Craft building and lots in North Platte, the ostensible liens of which were purchased by plaintiff with money paid by her to the county treasurer.
The claim of plaintiff for a refund of the void taxes included $4,124.56 levied by the school district of North Platte *753and certified to- the county treasurer for collection. Comp. St. 1929, sec. 79-2522. The county did not levy these void school taxes or receive the money paid by plaintiff therefor to the county treasurer.
The claim of plaintiff for a refund of the void taxes included also $3,203.51 levied by the city of North Platte against the same property and certified to the county treasurer for collection. Comp. St. 1929, sec. 16-702. The county did not levy these void city taxes or receive the money-paid by plaintiff therefor to the county treasurer. The county treasurer, as trustee, received from plaintiff the school taxes for the school district and the city taxes for the city and he was required by statute to hold them for refund to plaintiff, pending litigation, if found to be void. Comp. St. 1929, sec. 77-1705.
While the litigation to test the validity of the taxes levied against the Masonic property was- pending, the county treasurer unlawfully turned over to the school district the money received by him from plaintiff for the school taxes and to- the city the money,received by him for city taxes. It was his statutory duty to retain these funds in his hand's pending litigation for the purpose of returning them to plaintiff if the taxes- should be adjudged void. Comp. St. 1929, sec. 77-1705. Since the county did not levy these void taxes o-r receive payment therefor from plaintiff, it cannot refund what it never received and is not liable to- her therefor. By violation of law the person holding the office of county treasurer could not create an obligation of the county. The failure of the treasurer, as trustee, to retain these trust funds pending litigation was not the act of the county but the wrong and the trespass of the individual occupying the office of county treasurer. This is the law of Nebraska. In a former case the rule was stated thus:
“In dealing with taxes certified by city authorities to the county clerk, neither the county clerk nor county treasurer acts as agent of the county.” Kelley v. Gage County, 67 Neb. 6, 93 N. W. 194. See, also, School District No. 2 v. Saline County, 9 Neb. 403, 2 N. W. 877; Lancaster County v. *754State, 74 Neb. 211, 215, 104 N. W. 187, 107 N. W. 388.
The district court and the supreme court were in law as powerless as the county treasurer to bind the county for a refund having no existence in fact and never having been authorized by law. Citizens having their residences and their taxable property in Lincoln county outside the school district and outside the city of North Platte were not benefited by the trust funds received by the county treasurer from plaintiff and illegally turned over to the school district and to the city. Enforcement of the erroneously affirmed judgment against the county will result in the taxation of property outside the school district and outside the city to pay the debts of the school district and to pay the debts of the city, in plain violation of the due-process clause of the Fourteenth Amendment of the Constitution of the United States.
The lawmakers themselves were without power to authorize taxation in Lincoln county outside the school district and outside the city to be applied alone to the debts of the city and of the school district. The law has been stated as follows :
“Should the legislature order that money be raised by one district and paid to another district, to be used-for the sole benefit of that other district, that would be an exaction of money for the benefit of others than those who are taxed and clearly beyond what could be justified as taxation. 26 R. C. L. 72, sec. 51.” State v. Board of County Commissioners, 109 Neb, 35, 189 N. W. 639.
The affirmed judgment not only requires unlawful taxation, but is a sentence imposed on property owners in Lincoln county outside the school district and outside the city, without indictment, notice or day in court, to pay fines or tribute for the benefit of the school district and the city. 1 Cooley, Taxation (4th ed.) sec. 186; 26 R. C. L. 72, sec. 51; Robinson v. City of Norfolk, 108 Va. 14, 60 S. E. 762; Sharpless v. Mayor of Philadelphia, 21 Pa. St. 147, 168.
In addition, the entire claim of plaintiff for a refund was outlawed by the five-year statute of limitations inserted by *755the legislature in the revenue law of Nebraska. The valid-' ity of these taxes was in litigation August 30, 1930, with the public records charging plaintiff with notice thereof when speculating in delinquent taxes. The claim of plaintiff for a refund was based on a tax sale certificate for delinquent taxes issued to her November 3, 1930, and on payment of subsequent taxes on the same Masonic property. All were adjudged void before the present action was. commenced. North Platte Lodge, B. P. O. E., v. Board of Equalization, 125 Neb. 841, 252 N. W. 313; Masonic Temple Craft v. Board of Equalization, 129 Neb. 293, 261 N. W. 569; Masonic Temple Craft v. Board of Equalization, 129 Neb. 827, 263 N. W. 150; McDonald v. Masonic Temple Craft, 133 Neb. 589, 276 N. W. 176; McDonald v. Masonic Temple Craft, 135 Neb. 48, 280 N. W. 275.
The claim of plaintiff for a refund was not presented to the county board for allowance until December 10, 1938, a period of more than five years from the date of the tax sale certificate. The claim for a refund was therefore barred by the revenue law which declares:
“If the owner of any tax sale certificate shall fail or neglect to demand a deed thereon, or to- commence an action for the foreclosure of the same within five years from the date of the sale, such tax sale certificate shall cease to- be valid or of any force or effect whatever, and the real estate covered thereby shall be forever released and discharged from the lien of all taxes for which the same was sold.” Comp. St. 1929, sec. 77-2049.
By unanimous opinion the supreme court ruled pursuant to this statute as follows:
“A claim or an action against a county by the holder of a tax sale certificate for a refund of taxes assessed against the real estate sold is’ barred by the statute of limitations, unless presented in some form to the county for allowance within five years from the date of the sale.” Gibson v. Dawes County, 129 Neb. 706, 262 N. W. 671.
This was unanimously recognized as law and cited in Wetzel v. Dawes County, 129 Neb. 711, 262 N. W. 674, in Ken*756nedy v. Dawes County, 130 Neb. 227, 264 N. W. 452, and in McDonald v. Lincoln County, 139 Neb. 188, 296 N. W. 892. Since the plain letter and spirit of the five-year revenue statute of limitations was thus enforced as enacted, the legislature has been in session from time to- time without changing it and has thus permitted it to remain as- the true expression of the legislative will.
Moreover, a supreme court ruling reads as follows :
“Section 77-2030, Comp. St. 1929, does not require a foreclosure action to be begun or a demand for a deed to be made on a void tax sale certificate before instituting proceedings before the board of county commissioners for reimbursement, provided the proceedings are begun within five years from the date of the certificate.” Farm Investment Co. v. Scotts Bluff County, 125 Neb. 582, 251 N. W. 115.
It requires more legislation than the statutes contain to justify affirmance of the judgment requiring Lincoln county to refund to plaintiff money it never’ received and to pay a claim barred by the five-year revenue statute of limitations. On the undisputed facts and the law applicable thereto-, we cannot allow the opinion of the majority to- go- unchallenged. The judgment of the district court should be reversed and the action dismissed.