C. R. T. Corp. v. Board of Equalization, Douglas County

• Decision Date: 14 July 1961
• Docket Number: No. 34986,34986
• Citation: C. R. T. Corp. v. Board of Equalization, Douglas County, 110 N.W.2d 194, 172 Neb. 540 (Neb. 1961)
• Parties: C.R.T. CORPORATION, a Nebraska Corporation, Appellant, v. BOARD OF EQUALIZATION, in the COUNTY OF DOUGLAS, in the State of Nebraska; et al., Appellees.
• Court: Nebraska Supreme Court

Page 194

110 N.W.2d 194

172 Neb. 540

C.R.T. CORPORATION, a Nebraska Corporation, Appellant, v. BOARD OF EQUALIZATION, in the COUNTY OF DOUGLAS, in the State of Nebraska; et al., Appellees.

No. 34986.

Supreme Court of Nebraska.

July 14, 1961.

Syllabus by the Court.

1. The county board of equalization of Douglas County, Nebraska, is required to make the levy of taxes for all county purposes.

2. Included within 'county purposes' is the amount necessary to be raised by taxation as provided in the annual budget of the school districts for school purposes.

3. A taxpayer may appeal from the action of the county board of equalization, if in the judgment of the taxpayer the levy is for an unlawful or unnecessary purpose, or in excess of the amount necessary to perform the purposes of the levy.

4. By the Constitution of the State of Nebraska the powers of government are divided into three distinct departments, the legislative, executive, and judicial, and no person or persons of any of these departments shall exercise any power properly belonging to either of the others, except as the Constitution directs or permits.

5. The Legislature may not impose upon the courts the performance of non-judicial duties nor delegate to them legislative power.

6. The Constitution does not bar the right of the Legislature to confer upon the courts the power to review the propriety and legality of legislative action, or of administrative or ministerial action taken pursuant to legislative grant of power.

7. A definition of that which distinguishes a judicial from a legislative act is, that the one is a determination of what the existing law is in relation to some existing thing already done or happened, while the other is a predetermination of what the law shall be for the regulation of all future cases falling under its provisions.

8. When a judicial controversy in fact arises, the courts have the inherent right to intervene, even without or against the expressed will of the Legislature.

9. It is competent for the Legislature to provide a procedure or multiple procedures for the bringing of judicial questions before the courts for determination.

10. There is a presumption that the officers of a school district acted within their authority and did not transgress the scope thereof.

11. When it is charged that the action of the officers of a school district was beyond their authority, the burden is upon the one making the charge to adduce proof to sustain the charge.

12. The amount of taxes to be levied for school purposes is not capable of exact determination, and if the levy appears to be reasonable in the light of contingencies to which regard must be given, even though a surplus may be anticipated, the levy will be sustained.

Ross & O'Connor, McGowan & Troia, Omaha, for appellant.

John J. Hanley, County Atty., John C. Burke, Deputy County Atty., Wm. Ross King, Seymour L. Smith, Omaha, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

YEAGER, Justice.

The action here flows from a levy of taxes made by the county board of equalization of Douglas County, Nebraska, for the fiscal year 1960-1961 for the School District of the City of Omaha, Nebraska, a Class V district, on August 9, 1960. The levy was made pursuant to sections 79-1007 and 79-1052, R.R.S.1943, and sections 79-1007.01 and 79-1007.02, R.S.Supp., 1959. The total was 28.5 mills on the dollar of tangible property in the district. It was allocated as follows: General operations, 23.4 mills; site and building, 1 mill; bond redemption, 3 mills; and pension fund-special levy, 1.1 mills. From this levy the C. R. T. Corporation, the owner of real estate subject to taxation in the district, as plaintiff, perfected an appeal to the district court. The Board of Equalization in the county of Douglas, Nebraska, the County of Douglas, Nebraska, and the School District of Omaha, Nebraska, were made defendants. The district is in the county of Douglas. On the appeal no attack is made upon any item of levy except that for general operations or, as stated in a petition which was filed by the plaintiff, the general fund. The contention on appeal is that 3 mills of this levy of 23.4 mills is null and void. There is no contention that the remaining 20.4 mills of the levy for the general fund is not valid.

The basis of the contention that this portion of the levy is null and void is that it is for an unlawful and unnecessary purpose, and in excess of the requirements of the district. Alleged reasons why this was true are that the levy failed to take into consideration the balance on hand at the end of the school year; that this was an attempt to create a surplus in excess of requirements; that it represented an underestimate of revenue from tax and nontax sources; and that there was an improper transfer of funds from the general fund.

To the petition the school district filed an answer. By the answer it alleged that the court was without jurisdiction over the subject matter; that the plaintiff had no lawful power or authority to prosecute the appeal; and that this being a purported class action the appeal on that account is void.

For further answer this defendant denied generally all of the allegations except that it admitted that the levy as charged was made on all taxable property except intangible property.

The county board of equalization and the county of Douglas filed an answer which is in substance the same as that filed by the school district.

The case was tried to the court after which findings were made and a judgment duly rendered. The court found generally in favor of the defendants; that the court was without jurisdiction; that the evidence failed to prove the material allegations of the petition; and that the appeal should be dismissed. By the judgment the appeal of the plaintiff and the petition were dismissed.

The plaintiff duly filed a motion for new trial. This motion was overruled. From the judgment and the order overruling the motion for new trial the plaintiff has appealed.

The active parties on this appeal are the named plaintiff and the defendant School District of Omaha. In consequence of this, in case of use of the term, defendant, this will have reference to the school district in the absence of other description indicating a reference to one of the other defendants.

As grounds for reversal the plaintiff has set forth in its brief several assignments of error. The first one asserts that the court erroneously found that it was without jurisdiction to entertain the appeal. The brief of the defendant advances more than one theory of lack of jurisdiction. The adjudication does not disclose on what theory lack of jurisdiction was found. It is therefore necessary to consider those which are pertinent. The first of these to be considered is that of whether or not statutes in terms confer upon the board of equalization the power to make a levy such as was made or attempted here and, after such levy has been made, jurisdiction on the distirct court to review it on appeal. A contention of the defendant is in effect that the levy is not made by the board of equalization but by the board of education of the school district, hence there is no right of appeal from the board of equalization.

This contention is without merit. The statutes by their terms clearly declare that the opposite is true. Section 77-1601, R.R.S.1943, in defining the duties of the board of equalization and in declaring the duties with reference to school district funds, contains the following: 'After making the levy for such purpose, the county board of equalization shall make the levy of taxes for county purposes. The levy shall include all county taxes necessary to cover the amounts required to be raised by taxation, as provided in the annual budget of said county for the current year, and shall include all township, city, school district, precinct, village, road district, and other taxes required by law to be certified to the county clerk and levied by the county board of equalization; * * *.' So that there may be no misunderstanding, the procedure followed leading up to and in the making of the levy was as follows: The board of education of the school district certified a budget to the county clerk which budget was presented to the board of equalization and on the basis of this budget the board of equalization made the levy. This on its face indicates that here was a levy of what was in law to be regarded as a county tax made and to be made by the board of equalization. In addition, specifically so declaring is section 77-109, R.R.S.1943, as follows: 'The term 'county tax' includes all taxes due to the county, school districts and other subdivisions of the county, which are levied and collected by the county.'

As to the right of a taxpayer to appeal, section 77-1606, R.R.S.1943, contains the following: '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.'

The insistence that the phrase 'in excess of the requirements of a county' has the effect of limiting the right of appeal to a matter of levy, strictly speaking, of county taxes is not convincing in the light of the definitions quoted.

It is suggested that the action may not be maintained for the reason that the appeal was on behalf of a class and not by a person entitled to take an appeal. On its face it is an appeal by a single taxpayer and not by a class. The suggestion does not require further consideration.

The defendant's contentions that the court was without...