School Dist. of City of Omaha v. Adams
| Decision Date | 07 February 1947 |
| Docket Number | 32136. |
| Citation | 26 N.W.2d 24,147 Neb. 1060 |
| Parties | SCHOOL DIST. OF CITY OF OMAHA v. ADAMS, County Treasurer, et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. The words 'fines, penalties, and license moneys,' as used in section 5, article VII, of the Constitution, refer to and include fines imposed in the punishment of crimes and misdemeanors, exactions imposed for violations of ordinances and regulations growing out of the exercise of the police power and having the characteristics of a criminal proceeding, and generally speaking, such license fees as may be imposed upon businesses which by their nature require police regulation by the state and its governmental subdivisions.
2. The 50 percent penalty collected under section 77-318 R.S.1943, for failure to list intangible property for taxation, though punitive as to the wrongdoer, is compensatory to the state and the subdivisions thereof entitled to share in the tax for the delay caused by the failure to list for assessment purposes and the subsequent derangement of tax records and collection processes.
3. An exaction contained in a tax statute which is remedial and compensatory as to the taxing body levying the tax is not within the contemplation of section 5, article VII, of the Constitution, even though it is termed as penalty and is punitive as to the delinquent taxpayer.
4. In the absence of statute to the contrary interest, penalties, and costs collected on delinquent taxes follow the tax, and go to the state or its governmental subdivisions according as the one or the other is entitled to the tax itself. When two or more governmental subdivisions are interested in the tax, such interest, penalties, and costs should be apportioned among them in the ratio of their respective shares of the tax.
5. The 50 percent penalty collected under section 77-318 R.S.1943, should be distributed in the same manner as the tax on intangible property, as provided by section 77-704 R.S.1943.
W. Ross King, of Omaha, for plaintiff.
Kelso Morgan, Co. Atty., Joseph D. Houston, Deputy Co. Atty., E. F. Fogarty City Atty., and Edward Sklenicka and Einar Viren, Asst. City Attys., all of Omaha, Walter R. Johnson, Atty. Gen., and Erwin A. Jones, Asst. Atty. Gen., for defendants.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
This is an original action for a declaratory judgment brought by the School District of the City of Omaha against the County of Douglas, the City of Omaha, the State Tax Commissioner, the Auditor of Public Accounts, and the State Treasurer, to determine the correct apportionment and distribution of penalties collected pursuant to section 77-318, R.S. 1943. It is the contention of plaintiff that all of said penalties belong to the School District of the City of Omaha by virtue of section 5, article VII, of the Constitution. The defendants urge that such penalties should be apportioned as prescribed by section 77-704, R.S. 1943, and distributed in the same manner as delinquent taxes collected on intangible property.
The record shows that the county treasurer of Douglas County has in his hands the sum of $4,697.21, which represents statutory penalties collected from the estate of G. Sam Rogers, deceased, for failure of said Rogers in his lifetime to list certain intangible property for taxation. A claim was filed in said estate by the county treasurer of Douglas County pursuant to section 77-319, R.S. 1943, for taxes, interest, and penalties. The case came to this court and the claim of the county treasurer was sustained. In re Estate of Rogers, 147 Neb. 1, 22 N.W.2d 297. The judgment entered upon the mandate of this court included the item of $4,697.21, which represented the 50 percent penalty for failure to list such intangible property for taxation. A similar item of $749.28, collected in another estate, is also shown by the petition. The principles of law here for our consideration are equally applicable to both amounts.
It is the contention of the plaintiff that the penalties herein involved were imposed and collected under sections 77-316 to 77-319, R.S. 1943, for failure of the decedents to return their intangible property for taxation and not because of a failure to pay taxes assessed on intangible property; that such penalties are not a part of the taxes collected and were in addition to the interest charges thereon; that such penalties were not in the nature of compensation or liquidated damages, but were assessed as a punishment for the offense committed by the decedents in failing to report their intangible property for taxation, and that the penalty of 50 percent of the amount of the taxes collected was not computed on the basis of the period of delinquency. There is no statutory provision which provides the manner in which such penalties are to be distributed. The plaintiff alleged that the penalties involved are within the provisions of section 5, article VII, of the Constitution, and are required by its terms to be paid to the plaintiff school district.
Section 5, article VII, of the Constitution provides: It must be conceded that this provision is self-executing and if the moneys involved are penalties within the meaning of this constitutional provision, a judgment awarding them to the plaintiff district would be required.
This court has never determined the nature of the penalty of 50 percent provided for in section 77-318 for failure to list intangible property for taxation. We have said that interest is not a part of the tax within the meaning of constitutional provisions requiring uniformity of taxation and prohibiting the commutation of taxes. Steinacher v. Swanson, 131 Neb 439, 268 N.W. 317; Tukey v. Douglas County, 133 Neb. 732, 277 N.W. 57. A tax is not a debt and consequently does not bear interest in the absence of statute. Interest does not inhere in a tax as a legal incident, although it is incidental to the tax assessed in the sense that it is based upon the amount of the tax and is collectible in the same manner and in the same proceeding. In...
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Sch. Dist. of City of Omaha v. Adams, 32136.
...147 Neb. 106026 N.W.2d 24SCHOOL DIST. OF CITY OF OMAHAv.ADAMS, County Treasurer, et al.No. 32136.Supreme Court of Nebraska.Feb. 7, Original action for a declaratory judgment by the School District of the City of Omaha, in the County of Douglas, in the State of Nebraska, against Ernest A. Ad......