Northwestern Bell Telephone Company v. State Board of Equalization and Assessment

Decision Date16 November 1929
Docket Number27181
PartiesNORTHWESTERN BELL TELEPHONE COMPANY v. STATE BOARD OF EQUALIZATION AND ASSESSMENT
CourtNebraska Supreme Court

ERROR to the State Board of Equalization and Assessment. Increase of assessment vacated.

Order vacated.

Syllabus by the Court.

Where an increase in the assessed valuation of any class or classes of property, as returned by any county or counties, is made by the state board of equalization and assessment without notice to such county or counties, and without affording sufficient opportunity to be heard, such increase is in violation of section 5901, Comp. St. 1922, and amounts to confiscation of property without due process and is therefore a void increase of assessment.

Error to State Board of Equalization and Assessment.

Petition for writ of error by the Northwestern Bell Telephone Company to review an order of the State Board of Equalization and Assessment purporting to equalize the property of telephone companies for taxing purposes for the year 1929. Order of Board of Equalization and Assessment vacated.

F. E Randall, A. G. McBean and K. F. Oehler, for plaintiff in error.

C. A Sorensen, Attorney General, and L. Ross Newkirk, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, THOMPSON, EBERLY and DAY, JJ.

OPINION

DEAN, J.

The state board of equalization and assessment, hereinafter called the board was created under section 5898, Comp. St. 1922, and consists, ex officio, of four elective state officers, namely, the governor, the secretary of state, the state auditor, and the state treasurer, and also the tax commissioner. August 2, 1929, at a meeting of the board, an order was executed increasing the assessed valuation of all telephone properties throughout the state, in the sum of 20 per cent., as stated, for the year 1929, as reported by the abstracts of assessed property in the several counties. Thereupon, in due course, the board ordered that the 20 per cent. increase be duly certified to all county clerks to the end that such required increase might be regularly carried on the tax rolls. It clearly appears that the order complained of was entered by the board without notice to the counties making the return and without affording sufficient opportunity to be heard by the board. And it also appears that the board did not call any witnesses nor was any testimony whatever considered in respect of the increased valuation of the telephone property in question.

When the order which purports to increase the assessed valuation was published, plaintiff, under authority of section 5901, Comp. St. 1922, filed a petition for a writ of error wherein the assignments of alleged error were set out. And, pursuant to an order issued by this court, the writ was allowed and the subject-matter of the controversy is now before us for final decision on the merits.

Section 5901, above cited, provides that the board shall issue a notice to the counties which it deems under-valued or over-valued on the tax list, as the facts may appear to warrant, and it is also provided in the same section that the board thereupon "shall set a date for hearing at least five days following the mailing of such notice. At such hearing legal representatives of the counties may appear and show cause why the valuation or valuations of their county should not be increased or decreased by the state board, and after a full hearing, the state board shall enter its order and certify the same to the county clerks of the proper counties as hereinbefore set forth in this section."

Plaintiff, as herein noted, contends and it is not denied, that no notice was given by the board that a hearing would be held in respect of the proposition to raise the assessed valuation, and that no opportunity was given to the company to submit evidence thereon. In 3 Cooley, Taxation (4th ed.) sec. 1123, the learned author says:

"But as an increase in an assessment is not frequent, and will seldom be anticipated by the taxpayer, who will not be likely to attend upon the review except to seek a reduction, it seems safer and more just to hold, as has generally been done, that the taxpayer should have personal notice of any purpose to increase the assessment made against him."

In Bankers Life Ins....

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