Cass County v. Chicago, B. & Q.R. Co.

• Decision Date: 03 January 1889
• Citation: 41 N.W. 246,25 Neb. 348
• Parties: CASS COUNTY, PLAINTIFF IN ERROR, v. THE CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

41 N.W. 246

25 Neb. 348

CASS COUNTY, PLAINTIFF IN ERROR, v. THE CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, DEFENDANT IN ERROR

Supreme Court of Nebraska

January 3, 1889

ERROR to the district court for Cass county. Tried below before FIELD, J.

REVERSED AND REMANDED.

Allen Beeson (Covell & Polk with him), for plaintiff in error cited: Mills on Eminent Domain, Sec. 110. Williams v. R R. Co., 50 Wis. 76. Houghton v. C., D. & M. R Co., 47 Iowa 370. Ry. Co. v. Schurmeir, 7 Wall. 272. Barney v. Keokuk, 94 U.S. 324. Kittle v. Shervin, 11 Neb. 65. Deane v. Todd, 22 Mo. 90. State v. Powers, 4 Zabr., 406. Randle v. Williams, 18 Ark. 380. Louden v. East Saginaw, 41 Mich. 18. Jenkins v. Jenkins, 63 Ind. 415. S. C., Am. Rep., 229. Mathewson v. Thompson, 12 R. I., 288.

T. M. Marquett and J. W. Deweese, for defendant in error, cited: C., M. & St. P. Ry. Co. v. City of Sabula, 13 Am. & Eng. R. R. Cases, 443. Otoe County v. Mathews, 18 Neb. 466. B. & M. R. R. Co. v. Buffalo County, 14 Neb. 51. Union Pacific R. R. Co. v. Hall et al., 91 U.S. 343.

OPINION

REESE, CH. J.

This action was instituted in the district court of Cass county, for the purpose of recovering from the county certain taxes which were alleged to have been illegally paid on the west half of the railroad bridge across the Missouri river at Plattsmouth.

It was alleged in the petition that the precinct assessor of Cass county assessed the property for the years 1881, 1882, 1883, 1884, and 1885, and upon his return of the same to the county officers the taxes were levied thereon, the same as upon other property in the county, and that the taxes were paid under protest in writing; that they were unlawfully levied and collected, for the reason that the bridge was, at all times, a part of the line of railroad of defendant in error, and legally taxable only as the other portions of the road were taxable, and that the same was for each year reported to the state board of equalization as a part of the railroad, and taxed accordingly, all of which taxes had been paid.

The answer of plaintiff in error consisted mainly in specific denials of the allegations of the petition, in so far as the illegality of the taxation was concerned, and it was alleged that the bridge was not legally taxable by the state board of equalization, that it was not a part of the road-bed of defendant in error's road; that it was not operated as a part of said road; that it was listed to the precinct assessor for taxation by the duly authorized officers of the railroad company, and that it was legally subject to taxation by the county.

A jury trial was had, when, upon the close of the testimony, the district court instructed the jury to find a verdict for defendant in error for the sum of $ 5,463.66, which was accordingly done, and upon which, after a motion for a new trial had been made and overruled, judgment against the county was rendered. The county, as plaintiff in error, brings the cause to this court for review.

The petition in error contains twenty-five assignments of error. These assignments and the brief of the plaintiff in error are devoted, to a considerable extent, to the presentation of the question of the compliance by the agents of defendant in error with the requirements of the law in the payment of the taxes under protest, and the written notice thereof. While we think that, in many instances, there was a failure to comply with the provisions of the law, in the respect named, yet we are disposed to examine but one question involved in the case, and that is, whether or not the tax was legally assessed and levied; this being, as we think, the controlling question in the case.

The law in this state for the assessment and taxation of railroad property is contained in sections 39 and 40 of chapter 77 of the Compiled Statutes, entitled "Revenue." These sections are as follows:

"Sec. 39. The president, secretary, superintendent, or other principal accounting officers within this state, of every railroad or telegraph company, whether incorporated by any law of this state or not, when any portion of the property of said railroad or telegraph company is situated in more than one county, shall list and return to the auditor of public accounts for assessment and taxation, verified by the oath or affirmation of the person so listing, all the following described property belonging to such corporation on the first day of April of the year in which the assessment is made within this state, viz.: The number of m les of such railroad or telegraph line in each organized county in this state, and the total number of miles in the state, including the road-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 said railroad or telegraph lines; Provided, however, That all machine and repair shops, general office buildings, store houses, 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 or telegraph companies shall be listed for the purpose of taxation by the proper officers or agents of said companies, with the precinct assessors of any precinct in the county where said real or personal property may be situated, in the manner provided by law for listing and valuation of real and personal property."

"Sec. 40. The return to the auditor of public accounts herein provided shall be made on or before the 5th day of April annually. If the return aforesaid be not received by said auditor by the 10th day of April, he shall thereupon proceed to obtain the facts and information aforesaid in any manner that may appear most likely to secure the same correctly, and for that purpose may address a written communication to the corporation or to some officer of the corporation who has failed to make the return aforesaid. As soon as practicable after the auditor has received the said return, or procured the information required to be set forth in said return, a meeting of the state board of equalization, consisting of the governor, state treasurer, and auditor, shall be held at the office of said auditor, and the said board shall then value and assess the property of the said corporation at its actual value for each mile of said road or line, the value of each mile to be determined by dividing the sum of the whole valuation by the number of miles of such road or line. In making up such valuation or assessment the state board shall examine and consider the return herein required to be made, or the information procured by the auditor in default of such return, together with such other reliable information relative thereto as they may be able to procure; said board shall not assess the value of any machine or repair shop, or general office buildings, store houses, or any real or personal property situated outside the right of way or depot grounds of such company. On or before the 15th day of May, or so soon thereafter as the said board, or any two thereof, shall have made or determined said valuation and assessment, the auditor shall certify to the county clerks of the several counties in which the property of the aforesaid corporation, or any part thereof, may be situated, the assessment per mile so made on the property of such corporation, specifying the number of miles and amount in each of such counties. All such property shall, for the purpose of taxation, be deemed personal property, and placed upon the tax list as hereinafter provided."

By these sections it appears that the officers of railroad corporations are required to certify or return to the auditor of public accounts the number of miles of their railroad in each organized county, and the...