Adams County v. Kansas City & Omaha Railway Company

• Decision Date: 07 April 1904
• Docket Number: 13,185
• Parties: ADAMS COUNTY ET AL. v. KANSAS CITY & OMAHA RAILWAY COMPANY
• Court: Nebraska Supreme Court

99 N.W. 245

71 Neb. 549

ADAMS COUNTY ET AL. v. KANSAS CITY & OMAHA RAILWAY COMPANY

No. 13,185

Supreme Court of Nebraska

April 7, 1904

ERROR to the district court for Adams county: ED L. ADAMS, JUDGE. Reversed and dismissed.

Reversed and remanded, with directions.

Snider & Logan, for plaintiffs in error.

C. F Manderson, M. A. Hartigan, R. G. Brown, M. A. Reed, J. W Deweese and F. E. Bishop, contra.

ALBERT C. GLANVILLE, C., concurs. BARNES, J., dissenting.

OPINION

ALBERT, C.

This action originated in the presentation of a claim for the repayment of taxes paid under protest for the year 1900, to the county board of Adams county, which was rejected. Appeal was taken to the district court and submitted on an agreed statement of facts, which, so far as is material at present, is as follows: 1. It is admitted that the Kansas City & Omaha Railway Company is a corporation, created and existing under the laws of the state of Nebraska. 2. That its line of railway passes through the southern portion of Adams county, from east to west, and that there is situate on said railway the village of Le Roy and the village of Pauline in Adams county, Nebraska. 3. It is further admitted that the Kansas City & Omaha Railway Company is owner in fee of its right of way in Adams county, Nebraska, through and over which it passes. 4. It is further admitted that the Kansas City & Omaha Railway Company has erected at the villages of Le Roy and Pauline, as aforesaid, elevators, which elevators are erected and built upon piers of stone, brick and wood, and that the same are used by lessees in a general grain elevator business in buying and shipping grain to be transported over said railway company's line of road. And there is contained in said elevators, machinery, boilers, engines and other agencies for the handling, unloading and loading of grain received for shipment. And that said elevators are situate within and upon the right of way of said railway company. 5. It is further admitted that said railway company, for the year 1900, listed with the auditor of public accounts for the state of Nebraska, among other items of property, said elevators situate at Le Roy and Pauline, Adams county, Nebraska, and that said railway company has paid taxes levied against it by the state board of equalization. 6. That said elevators, with the machinery therein contained, were by the local authorities of Adams county, duly assessed as personal property, for the year 1900, in the precincts respectively of their location in the said Adams county, Nebraska, and that the taxes so levied and assessed were, by the said railway company, paid under protest, and this action brought to recover the money so paid. 7. It is further admitted that the populations of the village of Le Roy and of the village of Pauline do not exceed 200 in each instance; that in the village of Pauline there is located a grain elevator other than the one taxed to said railway company, and the same is operated by parties who buy, sell and ship grain, doing a general elevator business. 8. It is further stipulated and agreed that both the elevator at Le Roy and the elevator at Pauline were, during the year 1900, and prior and subsequently thereto, leased by said railway company, for value, to parties operating the same as general grain elevators, buying, selling grain and shipping the same over the line of said railway company. 9. That said railway company is not engaged in the purchase and selling or the receiving for storage of grain, but operates said line as a common carrier, transporting freight and passengers for hire. That there are numerous grain elevators along said railway company's line of road, and other lines of railroad in Adams county, Nebraska, owned and operated by private parties.

The county claims that the judgment of the district court is not sustained by the evidence, and is contrary to law. On the stipulated facts, the court found for the plaintiff, and entered a decree accordingly. The defendants bring error.

The principal question in the case is, whether the elevators were subject to assessment by the local authorities. The question should be answered in the affirmative, unless the property is exempt from such assessment by the provisions of section 39, article I, chapter 77, Compiled Statutes of 1899, in force when the taxes in question were levied. By the provisions of that section, railroad and telegraph companies were required to return to the auditor of public accounts for taxation by the state board of equalization the number of miles of such railroad and telegraph lines in each organized county in the state, and the total number of miles in the state, including the railroad bed, right of way and superstructures thereon, main and side tracks, depot buildings and depot grounds, section and tool houses, rolling stock and personal property necessary for the construction, repairs or successful operation of such railroad and telegraph lines. Then follows this proviso:

"Provided, however, That all machine and repair shops, general office buildings, storehouses and also all real and personal property outside of said right of way and depot grounds as aforesaid, of and belonging to any such railroad and telegraph companies shall be listed for purposes of taxation by the principal officers or agents of such companies, with the precinct assessors of any precinct of the county where said real or personal property may be situated, in the manner provided by law for the listing and valuation of real and personal property."

The plaintiff contends that each of the terms used in the proviso, to designate the different classes of property, is qualified by the phrase, "outside of said right of way," etc.; and, consequently, that the location of the property, and not its character or use, is the test whereby to determine whether it should be assessed by the state board, or by the local authorities. We do not think the proviso will admit of that construction. As was said by POST, J., in Chicago, B. & Q. R. Co. v. Hitchcock County, 40 Neb. 781, 59 N.W. 358:

"The provision under consideration is not found in the revenue law of 1879, but was adopted as an amendment thereto in 1881. By the original act railroad companies were required to return to the auditor of public accounts for taxation, not only the number of miles of track, rolling stock, depot grounds, repair shops, furniture and fixtures, but all other personal property belonging to the corporation. The declared purpose of the amendment is to except from the operation of the above general provision the property enumerated therein, including all real and personal property outside of the company's right of way and depot grounds."

To read the proviso as the plaintiff contends it should be read, it would mean no more than that the real and personal property outside the right of way and depot grounds, were thereby excepted from the general provisions of the section. Had the legislature thus intended, it is not likely they would have followed a specific enumeration by general terms sufficiently comprehensive to include all the preceding terms, and it is still less likely that the learned judge, who prepared the opinion in the case referred to, would have fallen into the same error of composition, had he thus understood the proviso. Besides, from the word "also," following the conjunctive, and the repetition of the collective "all," it is clear, we think, that the phrase, "outside of said right of way," etc., was intended to qualify only the word "property" immediately preceding it.

It is true, in Chicago, B. & Q. R. Co. v. Hitchcock County supra, there is one sentence which, taken by itself, would indicate that the court there held that the location of property was the arbitrary test whereby to determine what property came within the exceptions of the proviso. But the property, which gave rise to the controversy in that case, consisted of rails, ties and other material for the construction of a railroad, and was outside the right of way. The court held that the location was the test. The language of the opinion must be read and understood in the light of the facts then before the court. That the court, in applying the test in that case, had reference exclusively to...