Adair v. Miller

• Decision Date: 25 November 1922
• Docket Number: 22702
• Citation: 190 N.W. 865,109 Neb. 295
• Parties: HARRY H. ADAIR ET AL., APPELLANTS, v. WALTER E. MILLER, TREASURER, APPELLEE
• Court: Nebraska Supreme Court

190 N.W. 865

109 Neb. 295

HARRY H. ADAIR ET AL., APPELLANTS, v. WALTER E. MILLER, TREASURER, APPELLEE

No. 22702

Supreme Court of Nebraska

November 25, 1922

APPEAL from the district court for Dakota county: Guy T. GRAVES JUDGE. Affirmed.

AFFIRMED.

William P. Warner and Sidney T. Frum, for appellants.

Clarence A. Davis, Attorney General, Charles S. Reed and George W Leamer, contra.

Heard before MORRISSEY, C. J., ALDRICH, DEAN, DAY and FLANSBURG JJ., REDICK and SHEPHERD, District Judges.

OPINION

FLANSBURG, J.

This case calls for an interpretation of section 5884, Comp. St. 1922, providing for a special rate of taxation for certain properties which are described in the statute as "intangibles." The enactment (Laws 1921, ch. 133, art. VIII) carried no emergency clause and became a law on July 28, 1921. It provided:

"Moneys, gross credits, including corporation shares or stocks, * * * notes, * * * accounts, * * * securities, debentures, bonds, * * * shall be separately listed and shall be taxed on the basis of twenty-five per cent. of the mill rate levied upon tangible property."

The appellants, trustees of the estate of Marion O. Ayres, complain that certain notes and bonds, belonging to the estate and in their custody, which were, in fact, intangible properties, within the terms of the statute, were returned for taxation at their full value and were not separately listed or scheduled, as required by the act, and were assessed at the same full rate as other personal property, and not at 25 per cent. of that rate.

The question presented is whether or not the statute in question was intended to apply and govern the rate of taxation on "intangibles" for the year 1921. The trial court held that the statute was not operative as to personal property listed before the statute went into effect, and that the notes and bonds belonging to the estate of Marion O. Ayres were therefore properly assessed at the same rate as all other personal property, since such was according to the provisions of the law existing prior to the enactment in question.

The matter resolves itself, in short, to this; whether or not the statute is to be interpreted as retrospective or prospective in its effect.

It is necessary to consider the provisions of the law, existing in the year 1921, which pertain to the scheduling and assessing of personal property, and to determine how far the assessment for the year 1921 had actually progressed at the time the statute in question became effective, on July 28. The law at that time required that a person list for taxation the property of which he was owner, or which he held in trust, on April 1 of the year in which the property was to be assessed. Rev. St. 1913, sec. 6339; Wood v. McCook Waterworks Co., 97 Neb. 215, 149 N.W. 417. These property lists were required to be transmitted to the precinct assessor, whose duty it was to complete the assessment rolls, schedules and lists in his precinct and deliver them to the county assessor not later than the last Monday in May of that year. The county assessor was required to complete his revision of these lists and file them with the county clerk on or before the second Monday in June. Rev St. 1913, sec. 6431. On the first Tuesday after the second Monday in June the statute required the county board of each county to sit as a board of equalization (Rev. St. 1913, sec. 6437), and the county assessor, after equalization, was required to prepare an abstract of the assessment roll and to forward it to the state board of equalization on or before July 10 of the same year. Rev. St. 1913, sec. 6442. The state board of equalization was required to meet on the third Monday of July (Rev. St. 1913, sec. 6447), and, after the state board had completed its work of equalization, both the county board and the state board were authorized to then fix the tax levy. Rev. St. 1913, secs. 6450, 6456. On or before the first Monday in August of such year the state board was required to transmit to the county clerk of each county a statement of the rate of taxation required for the general and other state taxes. Under these provisions of the statute the proceedings for the assessment of property and the levy...