In re Equalization of Assessment of Natural Gas Pipe Lines

Decision Date18 May 1932
Docket Number28085
PartiesIN RE EQUALIZATION OF ASSESSMENT OF NATURAL GAS PIPE LINES. v. STATE BOARD OF EQUALIZATION AND ASSESSMENT, DEFENDANT IN ERROR STATE, EX REL. C. A. SORENSEN, ATTORNEY GENERAL, PLAINTIFF IN ERROR,
CourtNebraska Supreme Court

ERROR to the State Board of Equalization and Assessment. Reversed.

REVERSED.

Syllabus by the Court.

1. The attorney general is the principal law officer of the state. He has the right of invoking the judgment of this court by writ of error to the state board of equalization and assessment upon an order reducing assessments entered by such board.

2. One of the duties of the state board of equalization is that of equalizing assessments, that is, changing assessments by increasing or decreasing the same, to the end that all the property in the state shall bear its just proportion of the burdens of taxation. The board having failed to follow certain requirements of the statute, its action in reducing pipe line valuations 17 per cent. is set aside, and cause remanded to said board to act therein in conformity to statute.

Error to State Board of Equalization and Assessment.

Proceedings in the matter of the equalization of the assessment of the natural gas pipe lines in Nebraska. To review a decision of the State Board of Equalization and Assessment, C. A Sorensen, as Attorney General, and as attorney for Gage Dakota, and Saline Counties, brings error.

Reversed and cause remanded in accordance with opinion.

C. A. Sorensen, Attorney General, Hugh La Master and Loren H. Laughlin, for plaintiff in error.

Clark Jeary, F. C. Radke and Barlow Nye, contra.

N. M. Sommerville, pro se.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, DAY and PAINE, JJ., and LOVEL S. HASTINGS, District Judge. DAY, J., dissenting.

OPINION

PAINE, J.

Upon August 4, 1931, a petition for writ of error to the state board of equalization was filed in this court by C. A. Sorensen, as attorney general of the state, and as attorney for Gage, Dakota and Saline counties. Writ of error was allowed on the same day by two associate justices of this court, and service was accepted by William H. Smith, state tax commissioner. Upon September 1, 1931, a transcript was filed in this court, and upon the same day a demurrer was filed by the state board of equalization by F. C. Radke, its acting attorney, which set out among the grounds therefor:

1. That the attorney general has not the legal capacity to institute or prosecute a writ of error to the supreme court from a decision of the state board of equalization, for the reason that our statute, section 77-1004, Comp. St. 1929, gives the legal right to appeal only to "any person, county or municipality affected thereby;" that the counties of Gage, Saline and Dakota have not the legal capacity to sue by and through the attorney general, for the reason that such capacity is given to counties only through their county attorneys; and finally, that the attorney general has not legal capacity to institute suit or to appear for parties adverse to the state board of equalization.

This demurrer was argued to this court upon September 21, 1931, by F. C. Radke and Clark Jeary, acting as attorneys for the state board of equalization, and by the attorney general in person, who cited section 84-204, Comp. St. 1929, which reads: "The attorney general and the department of justice shall have the same powers and prerogatives in each of the several counties of the state as the county attorneys have in their respective counties."

The attorney general also defended his action by relying upon the decision of this court in the case of State v. Pacific Express Co., 80 Neb. 823, 115 N.W. 619, in which is cited a New Jersey case, holding:

"In equity, as in the law court, the attorney general has the right, in cases where the property of the sovereign or the interests of the public are directly concerned, to institute suit, by what may be called civil information, for their protection. The state is not left without redress in its own courts because no private citizen chooses to encounter the difficulty of defending it, but has appointed this high public officer, on whom it has cast the responsibility and to whom, therefore, it has given the right of appearing in its behalf and invoking the judgment of the courts on such questions of public moment."

We find that a late case, which is in line with the weight of authority, is State v. Finch, 128 Kan. 665, 66 A. L. R. 1369, 280 P. 910, which traces the powers and duties of the office of attorney general at common law from the earliest times to the present time, and holds: "Ordinarily the attorney general, both under the common law and by statute, is empowered to make any disposition of the state's litigation which he deems for its best interest."

Throop on Public Officers, section 542, says: "The rule respecting such powers is that, in addition to the powers expressly given by statute, * * * he has by implication such additional powers as are necessary for the due and efficient exercise of the powers expressly granted, or as may be implied from the statute granting the express powers."

The attorney general is given executive powers in regard to various matters committed to his care. Follmer v. State, 94 Neb. 217, 142 N.W. 908, Ann. Cas. 1914D, 151.

By the great weight of authority, it is now held that the attorney general is clothed and charged with all the common-law powers and duties except in so far as they have been limited by statute. The duties of his office are so numerous and varied that it has not been the policy of different state legislatures to enumerate them. As the chief law officer of the state, he may, in the absence of some express legislative restriction to the contrary, exercise all such power and authority as public interests may from time to time require. 2 R. C. L. 916.

The attorney general is the principal law officer of the state. As it was held by this court, in passing on the demurrer, that he had the right of invoking the judgment of this court by writ of error to the state board of equalization and assessment upon an order reducing assessments entered by that board, that ruling has become the law of this case.

2. After an answer and a reply were filed, trial was had to this court upon the briefs and arguments, including those of N. M. Sommerville pro se, an intervening taxpayer, who joined in the contentions of the attorney general.

It is insisted that the notice given upon July 20, 1931, fixing a hearing for July 25 following, was an insufficient notice, and we are cited to the following cases: Howard v. Jensen, 117 Neb. 102, 219 N.W. 811; Garrett v. State, 118 Neb. 373, 224 N.W. 860; Northwestern Bell Telephone Co. v. State Board of Equalization and Assessment, 119 Neb. 138, 227 N.W. 452; and also the case of Gurske v. Britt, 86 Neb. 312, 125 N.W. 539. However, in the case at bar the parties objecting to the notice had actual notice of the meeting, and attended the meeting, had an opportunity to be heard, and were not prejudiced by the notice served in this case.

It is next contended that the statute, section 77-1004, Comp. St 1929, requires that "a full hearing" be had, and we are cited to the case of Northwestern Bell Telephone Co. v. State Board of Equalization and Assessment, 119 Neb. 138, 227 N.W. 452, in which an order was entered without affording sufficient opportunity for a hearing, and setting out that the board did not call any witnesses or take any testimony prior to the making of the order increasing the valuation of the telephone property, for which reason the order was vacated and set aside in this court. However, in the case at bar the transcript shows that a number of exhibits were before the court in relation to assessments of various counties of the natural gas pipe lines and the cost per mile, as reported by the company, with the valuations asked by the companies and the valuations recommended by the county assessors, as well as the valuations fixed by the county boards of equalization, together with an affidavit of a purchasing agent of a gas engineering company in relation to prices for which the Republic Iron & Steel Company would furnish said pipe on July 17, 1931, or any day after April 1, 1931, and it is contended this affidavit would not cover the price on April 1, 1931, being the date on which...

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