City of Omaha v. Douglas Cnty.

• Citation: 96 Neb. 865,148 N.W. 938
• Decision Date: 26 September 1914
• Docket Number: No. 18544.,18544.
• Parties: CITY OF OMAHA v. DOUGLAS COUNTY ET AL.
• Court: Supreme Court of Nebraska

96 Neb. 865

148 N.W. 938

CITY OF OMAHA

v.DOUGLAS COUNTY ET AL.

No. 18544.

Supreme Court of Nebraska.

Sept. 26, 1914.

Syllabus by the Court.

The property of the municipality of Omaha, consisting of waterworks used for a public purpose to supply the inhabitants of the city and its suburban towns and territory with water for domestic use and fire purposes, is not taxable under section 2, art. 9, of the Constitution.

Appeal from District Court, Douglas County; Troup, Judge.

Action by the City of Omaha against the County of Douglas and others. Judgment for plaintiff, and defendants appeal separately. Affirmed.Myron L. Learned, of Omaha, Joseph T. Votava, of Edholm, and Geo. A. Magney and R. H. Olmsted, both of Omaha, for appellants.

John L. Webster, of Omaha, amicus curiæ.

B. S. Baker, W. C. Lambert, John A. Rine, and L. J. Te Poel, all of Omaha, for appellee.

HAMER, J.

The appeals to this court are taken separately by the city of Omaha, the city of Florence, and school district No. 5. The city of Omaha appealed from the orders of the board of equalization to the district court for Douglas county, which held that the property over which the controversy existed was not subject to taxation under the Constitution and laws of the state. From this last-mentioned judgment the city of Omaha, the city of Florence, and school district No. 5 have appealed to this court. Each filed a motion for a new trial, which was overruled. An examination of the pleadings and evidence discloses that Omaha became the owner of property outside of the city, from which it is alleged to derive a profit, and which is sought to be taxed. The authorities for Douglas county attempted to assess for the years 1912 and 1913 the property of the city of Omaha claimed to have been known as its waterworks. The transcript recites:

“In the matter of the appeal of city of Omaha from the order of the board of equalization of Douglas county, Neb., in reretaining upon the assessment rolls for purposes of taxation real and personal property in South Omaha, Florence, and Dundee recently purchased from the Omaha Water Company by City of Omaha. Original assessment return made by the county assessor.”

Here follows a list of certain personal and real property:

+------------------------------------------------------+
                ¦In name of Omaha Water Company. Assessment year, 1912.¦
                +------------------------------------------------------¦
                ¦Personal property in South Omaha        ¦$609,500.00  ¦
                +----------------------------------------+-------------¦
                ¦Personal property in Florence           ¦723,950.00   ¦
                +----------------------------------------+-------------¦
                ¦Personal property in Dundee             ¦17,925.00    ¦
                +----------------------------------------+-------------¦
                ¦Personal property in East Omaha         ¦18,925.00    ¦
                +------------------------------------------------------+
                

+---------------------------------------------------+
                ¦Real                                               ¦
                +---------------------------------------------------¦
                ¦Tax lot 1 & 2, Sec. 21-16-13 Florence  ¦$ 19,850.00¦
                +---------------------------------------+-----------¦
                ¦Improvements                           ¦524,900.00 ¦
                +---------------------------------------+-----------¦
                ¦Tax lot 2, Sec. 28-16-13 Florence      ¦11,550.00  ¦
                +---------------------------------------+-----------¦
                ¦Lots 1 & 2 & part 3, block 126 Florence¦200.00     ¦
                +---------------------------------------+-----------¦
                ¦Lots 4 & 5, block 126 Florence         ¦125.00     ¦
                +---------------------------------------------------+
                

Then comes a protest filed June 28, 1912, addressed “To the Honorable, the Board of County Commissioners of Douglas County, Nebr. Sitting as a Board of Equalization.” It is signed “City of Omaha, by W. C. Lambert, First Asst. City Attorney.” The protest complains that on February 23, 1912, “said city became the owner of all property, property rights, franchises, and rights and other interests, both real, personal and mixed, of the Omaha Water Company, in every way connected with or appurtenant to its water plant in this city, and has ever since such time been the owner of all of said property.” It is then alleged “that all and all parts of said property have been assessed by the county assessor of Douglas county and valued for assessment purposes for both said county and the city,” and that the valuation “for said purposes has been placed at $5,334,500.” It is then charged that at the time of said assessment and ever since “all of said property was exempt from assessment, valuation for assessment purposes, and taxation, under section 13 of chapter 77, art. 1, Comp. St. Neb. 1911, and should not be valued and assessed for any purposes.” It is then alleged that if the petitioner is right as to its contention and view of the law the effect “would be to require the carrying of said sum of $5,334,500 against which no assessment could validly be made, and would result in materially decreasing the amount of revenue which might be desired by both the county of Douglas and the city of Omaha”; also that the larger evils which might attend said course, in addition to the evils stated, “would be expensive litigation and troublesome delays in relieving against taxes assessed against said property.” The prayer attached is “that your honorable body determine and adjudge said property and all parts thereof heretofore belonging to said Omaha Water Company and passing from it by purchase to the city of Omaha, and now assessed as aforesaid, to be exempt from valuation, assessment, and taxation since February 23, 1912, because of the ownership thereof by the city of Omaha; and that you cause to be entered the proper order and to be made the proper records exempting said properties from taxation and cause the same to be stricken and removed from the assessment and taxing records and rolls of the county of Douglas.”

The transcript shows that the board reconvened July 1, 1912, Chairman Best presiding; that there were present Dewey, Elsasser, Hart, Lynch, O'Connor, Shriver, and Mr. Chairman. On motion the assessment made by the county assessor “upon the personal property of the Omaha Water Company in the amount of $5,334,500” was reduced to no dollars by unanimous vote. On July 2, 1912, the board met again, all the members being present and the prior action of July 1, 1912, reducing the valuation of the personal property of the Omaha Water Company in Douglas county from $5,334,500 to no dollars was reconsidered by a vote of six yeas and one nay. Thereupon the original motion was withdrawn, and Peter E. Elsasser made a motion as follows:

“I move that the real estate formerly owned by the Omaha Water Company and now owned by the city of Omaha, and situate within the city of Omaha returned for taxation at a value of $259,300 be stricken from the tax rolls, and declared exempt from taxation. I move, further, that the real estate formerly owned by the Omaha Water Company and now owned by the city of Omaha, situate in the city of Florence, remain assessed and valued for taxation at $556,300, and that the real estate formerly owned by the Omaha Water Company, now owned by the city of Omaha, situate in the precinct of Benson, remain assessed and valued at $25.000, all as returned by the county assessor for the year 1912.”

Said motion was adopted by unanimous vote. It was therefore further moved by Peter E. Elsasser that:

“Whereas as the county assessor has made a return of $5,334,500 covering all the personal property of the Omaha Water Company in Douglas county, of which said amount $3,964,200 is within the limits of the city of Omaha, $723,950 within the limits of the city of Florence, $609,500 is within the limits of the city of South Omaha, $18,925 is within East Omaha, and $18,925 within the village of Dundee, all now owned by the city of Omaha, I, therefore, move that the personal property aforesaid within the city of Omaha be stricken from the assessment rolls, and declared exempt from taxation, valued at $3,964,200, and that the personal property aforesaid within the city of Florence, valued at $723,950, within South Omaha valued at $609,500, within East Omaha $18,925, and within Dundee $18,925, be and the same is hereby valued and assessed for taxation at the figures above stated, respectively.”

This motion was adopted by a unanimous vote. Thereupon an appeal bond was executed and approved reciting the purpose of an appeal to the district court for Douglas county and notice was given of the proposed appeal. The transcript of the proceedings for the year 1913 is very like the foregoing proceedings for the year 1912. There was an order made by the district court in each of the cases consolidating them, and they were heard and disposed of together upon the pleadings, a transcript of the record of the board of equalization of Douglas county, and the evidence and also the arguments of counsel. The district court found that the property assessed and described in each of the cases was, at the time of the assessment and levy, the property of the city of Omaha; that the property described in the pleadings in each of said cases, being the property of the municipality of Omaha, was at the time of such assessment and levy exempt from taxation. The county of Douglas, school district No. 5 in Douglas county, and the city of Florence severally excepted to each and every of said findings. It was thereupon ordered and adjudged by said court:

“That the assessment and levy by the assessor and board of equalization of the county of Douglas of and on the property described in the pleadings in each of the above entitled cases was...