Richter v. City of Lincoln

• Decision Date: 12 May 1939
• Docket Number: 30518.
• Citation: 285 N.W. 593,136 Neb. 289
• Parties: RICHTER v. CITY OF LINCOLN.
• Court: Nebraska Supreme Court

285 N.W. 593

136 Neb. 289

RICHTER v. CITY OF LINCOLN.

No. 30518.

Supreme Court of Nebraska.

May 12, 1939

Syllabus by the Court.

1. A general demurrer admits all allegations of fact in the pleading to which it is addressed, which are issuable relevant and material, and well pleaded; but does not admit the conclusions of the pleader except when supported by, and necessarily result from, the facts pleaded. It does not admit inferences of the pleader from the facts alleged, nor mere expressions of opinion, nor theories of the pleader, nor allegations of the pleader as to what will happen in the future, nor arguments, nor allegations contrary to the facts of which judicial notice is taken, or which are contrary to law.

2. That part of subdivision 1, sec. 2, art. II of the Lincoln home rule charter, empowering that city to levy an occupation tax upon public service property or corporations in such amounts as may be proper and necessary, construed, and held to be a remedial act and to be applied as such, having in view the subject-matter to which it relates.

3. " Where the general intent of the legislature may readily be discerned, yet the language in which the law is expressed leaves the application doubtful or uncertain, the courts may have recourse to historical facts or general information, in order to aid them in interpreting its provisions." Nebraska District of Evangelical Lutheran Synod v. McKelvie, 104 Neb. 93, 175 N.W. 531, 7 A.L.R. 1688.

4. " A particular intention expressed in a legislative act, if in conflict with a general intention expressed in a later enactment, should be given effect leaving the later act to operate only outside of the scope of the former." Plattsmouth Bridge Co. v. Turner, 128 Neb. 738, 260 N.W. 562.

5. " Public service" is defined as " The business of supplying some commodity (as gas, electricity, power water) to any or all members of a community, or of providing some service (as transportation, as by railroad or bus or by pipe line; communication, as by telegraph or telephone; elevating grain; maintaining stock yards) where exercise of the calling involves some legal privilege or a natural or virtual monopoly." Webster's New International Dictionary, Unabridged (2d ed.).

6. " Public service property," as used in the Lincoln home rule charter, includes taxable property employed in " public service" as above defined.

7. A " taxicab" is " a motor vehicle, fitted with a taximeter which indicates the fare for the distance covered, used within or without the corporate limits of any city or village as a common carrier for the transportation of passengers for hire," etc. Comp.St.1929, § 60-201.

8. As disclosed by the petition, the taxicabs taxed are wholly engaged in the services so defined by statute as common carriers. They thus constitute " public service property," the use of which is subject to the levy of an occupation tax under the provisions of subdivision 1, sec. 2, art. II of the Lincoln home rule charter, and are clearly within the scope of valid provisions of the municipal code of the city of Lincoln imposing the occupation tax in suit.

9. The word " or" as employed in subdivision 10, sec. 2, art. II of the Lincoln home rule charter, construed as " and."

10. Ordinance in suit examined, and held not vulnerable to the objection that it is unjust and discriminatory in its classification and denies to the persons within its scope the equal protection of the laws in violation of the state Constitution and in violation of the federal Constitution.

Appeal from District Court, Lancaster County; Shepherd, Judge.

Action by Wallace C. Richter against the City of Lincoln to recover certain sums paid to the defendant as and for occupation taxes on certain taxicabs operated in the City of Lincoln. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment reversed and action dismissed.

PAINE, Judge, dissenting.

Ralph P. Wilson, City Atty., Clarence G. Miles, Asst. City Atty., and Frederick H. Wagener, all of Lincoln, for appellant.

Lloyd E. Chapman, of Lincoln, for appellee.

Heard before SIMMONS, C. J., and EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.

EBERLY Justice.

This is an action at law to recover certain sums paid to the city of Lincoln as and for occupation tax on certain taxicabs operated as such during the period for which such tax was assessed. The essential allegations of the petition herein include the following: That plaintiff, and fourteen others named therein, duly licensed taxicab owners and operators under the ordinances of the city of Lincoln, Nebraska, and the statutes of the state of Nebraska, associated together and carrying on their joint business in the manner described in such petition, severally operate their respective taxicabs as such, under the trade-name of the " Checker Cab Company," but are not incorporated; that on or about the 1st day of June, 1937, plaintiff and his fourteen associates, under the provisions of sections 22-209 and 22-210 of art. II, ch. 22 of the Lincoln Municipal Code for 1936, were, as owners, each compelled to pay, and did pay under protest in writing, an annual license fee for 1937 of $1, and an annual driver's license fee for 1937 of $1, and also an annual occupation tax in the sum of $15 for each cab licensed. The reason set forth in each of these protests in writing is that the ordinance is invalid because it is discriminatory and denies taxicab owners of the city equal protection of the laws; that thereafter, within 30 days, a claim in writing for refund was duly presented to the proper authorities of the city of Lincoln and disallowed; that thereupon each of plaintiff's associates duly assigned their respective claims for refund of the $15 so paid to plaintiff herein, who prosecutes this action for the recovery of all the amounts thus paid. The substantial basis of the recovery thus sought is the claim that the $15 thus levied and collected from plaintiff and his assignors on their respective taxicabs was levied without power and authority, under section 22-210 of the Lincoln Municipal Code for 1936, the terms of which were unauthorized by the provisions of the city's charter, and is discriminatory, and in effect denies to plaintiff and his assignors as taxicab owners the equal protection of the laws, both under the state and the federal Constitutions. In support of the allegations thus made, six distinct reasons were alleged which will be later discussed herein.

To this petition the defendant demurred generally " for the reason that said petition does not state or allege facts sufficient to constitute a cause of action."

Upon a hearing, the demurrer was overruled, and the city electing to stand upon its demurrer and plead no further, judgment was entered as prayed in favor of plaintiff. The trial court found specifically " that the allegations of plaintiff's petition are true," and " that the annual occupation tax for the year 1937 in the amount of fifteen dollars levied and collected by defendant from the plaintiff and each of his assignors herein, upon each of their fifteen taxicabs in the total amount of $225 was erroneously and illegally levied and collected by the defendant without power or authority under its home rule charter, or the law, so to do, and was discriminatory, and denied the plaintiff and his assignors of the equal protection of the laws" under the Constitution of the state and under the federal Constitution (Const.Neb. art. 1, § 1; U.S. C.A.Const. Amend. 14, § 1).

" A demurrer admits all the allegations of fact in the pleading to which it is addressed, which are issuable, relevant, and material, and which are well pleaded. * * * A demurrer admits allegations only of fact. It does not admit conclusions of the pleader, except when they are supported by, and necessarily result from, the facts stated in the pleading. It does not admit inferences of the pleader from the facts alleged, nor mere expressions of opinion, nor theories of the pleader as to the effect of the facts, nor allegations of what will happen in the future, nor arguments. * * * It does not admit allegations contrary to facts of which judicial notice is taken, or which are contrary to law." 6 Standard Ency. of Procedure, 943-952. See, also, Salsbury v. City of Lincoln, 117 Neb. 465, 220 N.W. 827; Markey v. School District, 58 Neb. 479, 78 N.W. 932.

We are quite of the opinion that the issues properly raised by the demurrer in this case are to be restricted to those determined by the district court in its special findings hereinbefore set forth.

Appellee contends that the only specific authority in Lincoln's home rule charter for levying a license fee and an occupation tax on any business is subdivision 10, sec. 2, art. II thereof, which reads as follows:

" To raise revenue by levying and collecting a license or occupation tax on any person, partnership, corporation or business, within the limits of the city, and regulate the same, except as otherwise in this charter provided. All such taxes shall be uniform in respect to the class upon which they are imposed." (Italics supplied.)

He also insists that the word " or," used in the above provision, is a disjunctive particle that marks an alternative and is never construed to mean " and" . Therefore, while the city is empowered under the provision quoted to levy and collect a license tax " or " to levy and collect an occupation tax, it cannot do both with respect to any particular subject of taxation. And the inference would seem to follow the contention thus made that, in the event of an attempt to exercise both powers by the city, the taxpayer would possess the power of election as to which to pay.

Under the facts and circumstances of this case, ap...