Hacker v. Howe

• Decision Date: 02 November 1904
• Parties: CHARLES R. HACKER, COUNTY CLERK, ET AL. v. CHURCH HOWE
• Court: Nebraska Supreme Court

101 N.W. 255

72 Neb. 385

CHARLES R. HACKER, COUNTY CLERK, ET AL. v. CHURCH HOWE

Supreme Court of Nebraska

November 2, 1904

REVERSED.

OPINION

HOLCOMB, C. J.

The state board of equalization and assessment, acting under the provisions and by the authority of section 130, article I chapter 77, Compiled Statutes, 1903 (Annotated Statutes 10529), being a part of the general revenue act, increased the aggregate assessment of several of the counties of the state, including that of the county of Nemaha, which was raised 5 per cent, above the amount as assessed and equalized by the county authorities. The action thus taken being certified to the county clerk of said county, it became his duty under said section to add to the assessment of each piece or parcel of property assessed in said county an amount equal to the per cent. of increase so directed as aforesaid. The plaintiff in this action brought in the district court for said county an injunction suit for the purpose of restraining the county clerk and his deputy from extending on the tax rolls of said county the percentage of increase to the assessed valuation as certified by the state board of equalization. After joinder of issues and a hearing to the court, the injunction was made perpetual, and the defendants prosecute error proceedings in this court.

The substance of the allegations of the plaintiff's petition on which is grounded his right to the relief prayed for is to the effect that: (a) The state board of equalization, in ordering the increase complained of, acted arbitrarily, capriciously and fraudulently; (b) that all property, both real and personal, in Nemaha county, had been valued at its true, full and actual cash value, and assessed at one-fifth thereof as provided by law, by the local authorities, and that the proposed per centum of increase would operate to raise the value of all property above its actual cash value, discriminate against the taxpayers of Nemaha county and violate the provisions of the fundamental law which require that all property shall be assessed so that each person and corporation shall pay a tax in proportion to the value of his, her or its property; (c) that no notice of any kind was given to the taxpayers of Nemaha county of the proposed increase, and that no way is provided by which the action of the board can be reviewed in a court of last resort; (d) that the action of the state board of equalization was null and void, because the increase of the aggregate valuation of the several counties as ordered was, in effect, a reassessment of property, and not an equalization thereof, and that said board exceeded its powers and jurisdiction; (e) there are also allegations to be found in the petition to the effect that two certain taxpayers of the county, who are named, listed and returned for assessment certain sums of money on hand and in bank, which were valued and assessed at their full legal value, and that there was returned for assessment and assessed in said county the aggregate sum of $ 306,505 in money at its full face value; and that the state board of equalization, knowing such facts, without authority, and in excess of its powers, by said order of increase raised the valuation of such property above its legal and face value, in violation of the provisions of the fundamental law requiring uniformity and equality in the valuation of property taxed for the purpose of raising needful revenues.

The constitutionality of the section under which the state board acted is specially challenged in the petition, but the grounds advanced are substantially the same as those above mentioned as the foundation for maintaining the injunction suit, and will be covered, without particularly referring thereto, in the general discussion to follow.

1. There are found in the petition allegations of a very general character charging that the state board of equalization in ordering the per centum of increase complained of, acted in a capricious, arbitrary and fraudulent manner. The trial court, while its principal finding was general and in favor of the plaintiff in the suit, found specially, "that the state board of equalization and assessment, in directing the increase of five per cent. to the assessed valuation, acted in good faith and without fraud." This finding is amply supported by the evidence, and is the only one that could have been sustained. It is not to be doubted that the state board of equalization, in taking the action and making the order complained of, acted in the utmost good faith, with a view solely of equalizing the assessments of the different counties of the state in the discharge of a duty imposed upon it by law. The board is not under the statute required to enter into a formal judicial investigation of the values of property to be affected by its action in the discharge of its duties as a board of equalization. It is its duty under the law to adjust and equalize the valuation of real and personal property in the different counties by a per centum of increase or decrease of the aggregate valuation of the county, with the view of apportioning equitably the burden of state government, and, in doing so, each member acts upon his own knowledge of the facts and without requiring other evidence. The fact that valuations are increased or decreased in any one county without the examination of witnesses is immaterial. When the board has before it the abstracts of assessment of the different counties, such as are required to be formulated and furnished for its information under the law, it is in a position to proceed in the discharge of its duties pertaining to the equalization of assessments of the different counties, and is authorized to act upon such information and the knowledge of its members as to values of property generally, without further or different information or greater formality. 1 Cooley, Taxation (3d ed.), 784; 1 Desty, Taxation 505; People v. Lothrop, 3 Colo. 428; Mayor of City of New York v. Davenport, 92 N.Y. 604; St. Louis, V. & T. H. R. Co. v. Surrell, 88 Ill. 535. The question therefore of fraud, arbitrary or capricious action, or other alleged improper motive or conduct on the part of the different members of the board in entering the order complained of, must be eliminated in the consideration of all further questions arising in the case.

2. Broadly stated, the principal ground relied on to maintain the injunction sued for is the alleged fact that all property in Nemaha county was valued by the county authorities at its full and actual cash value, and that the proposed increase ordered by the state board of equalization will result in an overvaluation of property, operate as a discrimination against the taxpayers of the county, in that it compels them to pay taxes on property they do not possess, in violation of the constitutional rule requiring taxation to be according to the value of the property taxed. The weakness of the position assumed lies in the premises advanced in support of it. It is not conceded that the property assessed in this county as valued by the county authorities is assessed at its full value; nor can it be accepted as a sound proposition that the values placed on the property listed with and assessed by the county assessor and his deputies are conclusive and binding on the state board of equalization as being the true and actual values thereof. The values of property on which taxes are to be levied are, under the statute, to be determined, not by the county assessor alone but only in conjunction with equalizing boards which are provided for the very purpose of correcting errors and inequalities in valuations as fixed by the assessor, and to bring all property values to a uniform standard. It is the duty of the county assessor and his deputies to list all property in the county subject to taxation, and value the same in the assessment thereof at its actual cash value. After the property has thus been scheduled and assessed and returned to the county board, it is the duty of the latter, under the provisions of section 121, article I, chapter 77, Compiled Statutes, 1903 (Annotated Statutes, 10520), to fairly and impartially equalize the valuation of the personal property and the real estate by raising or lowering the valuation as returned by the county assessor, and to hear grievances and complaints regarding the different assessments returned, and to review and correct the same as shall appear to be just; all of which is to be done in the manner provided in said section. By the section under consideration, after the forwarding of abstracts of the assessments of the different counties as is provided in the revenue act, it is made the duty of the state board of equalization, at the time and place therein stated, to meet for the purpose of equalizing assessments as between the different counties, and to examine the abstracts of property assessed for taxation in the several counties and to equalize such assessments so as to make the same conform to law. For that purpose, power is given the state board to increase or decrease the assessed valuation of any county by a per centum and to certify the same to the county clerk of the county affected, whose duty it is to add to or deduct from each piece or parcel of property an amount equal to the per cent. of increase or decrease as thus fixed by the state board. The assessment and valuation of property, as well as the subject of taxation generally, is purely a matter for the legislature, whose power in the premises is plenary except as limited by the constitution. By the constitution it is expressly said that the value of property on which taxes are levied shall be determined in such manner as the legislature shall direct. The legislature has...