1981-82 County Tax Levy by Saunders County Bd. of Equalization, In re, s. 82-248

• Decision Date: 17 June 1983
• Docket Number: Nos. 82-248,82-324,s. 82-248
• Citation: 335 N.W.2d 299,214 Neb. 624
• Parties: In re 1981-82 COUNTY TAX LEVY BY SAUNDERS COUNTY BOARD OF EQUALIZATION. Erwin MATULKA, Appellant, v. COUNTY BOARD OF EQUALIZATION et al., Appellees. In re 1981-82 COUNTY TAX LEVY BY DAWES COUNTY BOARD OF EQUALIZATION. Bruce T. ISKE, Appellant, v. COUNTY BOARD OF EQUALIZATION et al., Appellees.
• Court: Nebraska Supreme Court

Page 299

335 N.W.2d 299

214 Neb. 624

In re 1981-82 COUNTY TAX LEVY BY SAUNDERS COUNTY BOARD OF EQUALIZATION.

Erwin MATULKA, Appellant, v. COUNTY BOARD OF EQUALIZATION et al., Appellees.

In re 1981-82 COUNTY TAX LEVY BY DAWES COUNTY BOARD OF EQUALIZATION.

Bruce T. ISKE, Appellant, v. COUNTY BOARD OF EQUALIZATION et al., Appellees.

Nos. 82-248, 82-324.

Supreme Court of Nebraska.

June 17, 1983.

Syllabus by the Court

Schools and School Districts: Taxation. A taxpayer objecting to the setting of a nonresident high school tuition levy pursuant to Neb.Rev.Stat. § 79-436 (Reissue 1981) must give notice of appeal within 10 days after the setting of the levy by the county board of equalization.

John F. Recknor of Barlow, Johnson, DeMars & Flodman, Lincoln, for appellants.

James B. Gessford of Perry, Perry, Witthoff, Guthery, Haase & Gessford, P.C., Lincoln, for appellees School Dist. of Wahoo, et al.

Terrance O. Waite of Smith, King & Waite, Gordon, for appellee School Dist. of Hay Springs.

H.W. Snyder, Crawford, for appellee School Dist. of Hemingford.

William L. Howland, Dawes County Atty., Chadron, for appellee Dawes County Bd. of Equalization.

James W. Slavik of Crites, Shaffer & Slavik, Chadron, for appellee School Dist. of Chadron.

William L. Howland of Bump, Howland & Watson, Chadron, for appellee School Dist. of Crawford.

KRIVOSHA, C.J., and BOSLAUGH, McCOWN, WHITE, HASTINGS, CAPORALE, and SHANAHAN, JJ.

KRIVOSHA, Chief Justice.

Both of these appeals, which were tried separately, one in the District Court for Saunders County, Nebraska, and the other in the District Court for Dawes County, Nebraska, but argued to this court together, present the single question of whether a taxpayer desiring to appeal the levy of a tax sufficient to pay nonresident high school tuition pursuant to Neb.Rev.Stat. § 79-436 (Reissue 1981) must give notice of appeal within 10 days of the action of the board, or whether the taxpayer has 20 days in which to give notice of intention to appeal. Both trial courts, deciding the issue separately, determined that a taxpayer desiring to appeal the setting of a tax levy for nonresident high school tuition must do so within 10 days of the board's action and, accordingly, dismissed each of the actions as having been filed untimely. We believe that both of the District Courts were correct and we affirm each of the judgments.

The factual situations in each case are without dispute and, except for the time in which the appeal was perfected, are not of any particular significance to the issues. Briefly stated, in case No. 82-248 the Saunders County Board of Supervisors, sitting as the Saunders County Board of Equalization, set the nonresident high school tuition levy pursuant to § 79-436 on September 16, 1981. On October 5, 1981, Erwin Matulka, a taxpayer owning real estate in Saunders County, filed a notice of appeal, praecipe for transcript, and appeal bond in the District Court for Saunders County, Nebraska, pursuant to Neb.Rev.Stat. § 77-1606 (Reissue 1981). As the dates indicate, the notice of appeal was filed more than 10 days, but less than 20 days, after the action of the board of equalization.

In case No. 82-324 the Dawes County Board of Equalization set the nonresident high school tuition levy on September 15, 1981. On October 5, 1981, Bruce Iske, a taxpayer and owner of property within a nonresident high school district in Dawes County, Nebraska, filed his notice of appeal, praecipe for transcript, and appeal bond in the District Court for Dawes County, Nebraska pursuant to § 77-1606. As in the Matulka case, the Iske notice of appeal was filed more than 10 days, but less than 20 days, after the action of the board of equalization.

As we indicated at the outset, there is but one narrow legal question presented to us by both of these appeals. If the taxpayer was required to file his notice of appeal within 10 days following the action of the county board, then the failure to do so was jurisdictional and the District Court was without jurisdiction to hear the appeal. See Drier v. Knowles Vans, Inc., 144 Neb. 619, 14 N.W.2d 222 (1944). See, also, Taylor Dairy Products Co. v. Owen, 139 Neb. 603, 298 N.W. 332 (1941). On the other hand, if both Matulka and Iske had 20 days in which to perfect their separate appeals, each trial court was in error in disposing of the cases based upon the parties' failure to timely file their separate notices. One would anticipate that a reading of the statutes would resolve all of these questions. Unfortunately, as is too often the case with regard to appeal statutes, the language of the statutes involved only adds to the confusion.

Section 79-436 imposes upon the county board of equalization the ministerial function of levying a tax for the purpose of paying the cost of nonresident high school tuition. The section provides as follows: "Upon receipt of the proper certificate, the county board of equalization shall levy on the actual value of all the taxable property in the said county, except intangible property, a sufficient tax to pay the high school tuition as certified by the county superintendent; Provided, the board shall exclude from the levy the actual value of all of the taxable property of any district in which is maintained an approved four year high school, and one half of the actual value of all the taxable property of any district in which is maintained an approved two year high school. In case a county board of equalization shall fail to make such levy, the county superintendent of each county shall make a suitable levy within five days after the county board shall have adjourned and shall certify the same to the county assessor, who shall enter upon the tax rolls the levy so made by the county superintendent." (Emphasis supplied.) It is clear from a reading of § 79-436 that the county board of equalization exercises no discretion in this matter. It is required to levy a tax sufficient to raise the money necessary to pay the nonresident high school tuition as certified by the county superintendent. In fact, if it fails to do so the county superintendent is authorized by statute to take such action. See Werth v. Buffalo County Board of Equalization, 187 Neb. 119, 188 N.W.2d 442 (1971).

Section 77-1606, a statute dealing generally with appeals from actions taken by a county board of equalization levying various taxes, including the tax for nonresident high school tuition, then provides in part: "Any taxpayer may appeal from the action of the county board of equalization in making the levy, if in the judgment of such taxpayer the levy is for an unlawful or unnecessary purpose, or in excess of the requirements of a county, within the same time and in the same manner as appeals are now taken from the action of the county board in the allowance or disallowance of claims against the county...." (Emphasis supplied.) The fact that § 77-1606 applies to a multitude of taxing actions taken by the county board of equalization and is not limited to the nonresident high school tuition must be kept in mind when looking at its provisions. In view of the language of § 79-436, which imposes a mandatory duty upon the county board, the grounds upon which such appeal may be taken by a taxpayer under § 77-1606 are fairly limited. We need not for purposes of this appeal discuss that aspect further except to note the distinction between the general use of § 77-1606 and its limited...