State ex rel. Shriver v. Karr

• Decision Date: 23 April 1902
• Docket Number: 12,541
• Citation: 90 N.W. 298,64 Neb. 514
• Parties: STATE OF NEBRASKA, EX REL. WILLIAM G. SHRIVER ET AL. v. MYRON D. KARR ET AL
• Court: Nebraska Supreme Court

90 N.W. 298

64 Neb. 514

STATE OF NEBRASKA, EX REL. WILLIAM G. SHRIVER ET AL. v. MYRON D. KARR ET AL

No. 12,541

Supreme Court of Nebraska

April 23, 1902

ORIGINAL application for a writ of mandamus to compel the respondents as members of the city council and board of equalization of the city of Omaha to reconvene and consider complaints of the relators alleging inequalities in the assessment of taxes for the year 1902. Opinion of referee follows opinion of court. Writ awarded.

WRIT AWARDED.

James H. McIntosh, for relators.

W. J Connell, W. W. Morsman, John L. Webster and George E Pritchett, contra.

OPINION

SEDGWICK, J.

The relators obtained an alternative writ of mandamus from this court, directed to the respondents, as members of the city council and board of equalization of the city of Omaha, to compel them to reconvene as a board of equalization and consider and act upon the complaints of the relators alleging inequalities in the assessment of taxes for the year 1992. The respondents made return and answer to the writ, and a referee was appointed by this court to hear the evidence and report findings of fact and conclusions of law. ^[*] Upon the filing of the referee's report the respondents filed exceptions to his findings of fact, and to his conclusion that the costs ought to be taxed against respondents, and the relators filed exceptions to certain of his conclusions of law.

It is alleged in the alternative writ that "said tax commissioner duly completed said assessment roll for said 1902 city taxes, and duly transmitted the same to the city council for equalization; that by said assessment roll so submitted to said city council for equalization the personal property of said Omaha Street Railway Company was assessed at $ 550,000, of said Omaha Water Company at $ 575,000, of said Omaha Gas Company at $ 400,000, of said Nebraska Telephone Company at $ 109,310, and of said New Omaha Thomson-Houston Electric Light Company at $ 117,500; that no valuation or assessment whatever was placed upon, or made against, the franchises in said city of any one of said corporations, but said several franchises were omitted from said assessment except as to said electric light company, as aforesaid, although each and all of said franchises are, and then were, of great value, that of said street railway company having a fair cash value of, to wit, $ 4,000,000, of said water company of, to wit, $ 1,000,000, of said gas company of, to wit, $ 1,050,000, of said telephone company of, to wit, $ 1,000,000, and of said electric light company of, to wit, $ 140,000, that said 1902 assessment was made upon property generally in said city, except the property of said public-service corporations, on a basis of forty per cent. of its fair cash value; that said assessment upon the property of said five corporations was, and is, about ten per cent. of the fair cash value of their property and franchises, as will hereinafter more fully appear"; that the relators duly filed written complaints with the board of equalization to procure an equalization of the assessment of the property and franchises of said corporations, and that the board adjourned without duly hearing and considering these complaints.

The referee, in his report, after stating at some length the facts found by him from the evidence in regard to the action of the board upon the said complaints, finds "that the action of the board of equalization overruling the complaints filed upon procurement of the Real Estate Exchange did not estop the relators with reference to their five complaints, and was in no sense a matter of adjudication which forbade inquiry into the merits of the complaints of said relators. Upon said five complaints I find, further, that the action of the board in fixing a time for the hearing of the complaints by relators was a sanction of the sufficiency of said complaints in form and substance, and that the conduct of Hascall, Mount, Trostler, Whitehorn and Karr, who alone have answered in this case, was capricious, willful and arbitrary with respect to the complaints filed by the relators and that thereby said relators were deprived of the right to have reviewed the proceedings of the said board of equalization with reference to their above complaints by error proceedings, for the want of a final judgment, and that therefore, irrespective of the final result of this action, because of other considerations hereafter to be set forth, the costs of the case should be taxed against said Isaac S. Hascall, David T. Mount, Simon Trostler, William B. Whitehorn and Myron D. Karr, and judgment rendered accordingly." This finding is excepted to by the respondents as not being supported by the evidence. We do not find it necessary to comment at large upon the evidence. It is sufficient to justify the findings of the referee, and the exceptions to the findings of fact by the referee are therefore overruled.

The referee's conclusions of law, which are excepted to by the relators, are as follows:

"First. The manner in which companies and associations incorporated under the laws of this state (except insurance companies) shall be assessed, is prescribed by section 32, chapter 77, Compiled Statutes, and this method I find is exclusive of any other method. It is, however, abortive, if not unconstitutional, as to the four corporations, exclusive of the telephone company, which has no debt; for it requires the market or real value of the incorporate stock to be assessed after deducting corporate indebtedness, and this corporate indebtedness is twice deducted,--once in fixing the market or real value of the stock and again by an actual subtraction required by the statute.

"Second. The alternative writ, even as amended, shows that the basis of valuation for assessment purposes in Omaha is forty per cent. of the real value of all property assessed, except the property of the said corporations, and its mandate requires the respondents to ascertain and employ the basis employed generally, and to bring the property of the five public-service corporations above referred to to that standard. By sections 4 and 5, article 1, chapter 77, Complied Statutes, personal and real property is required to be assessed at its fair value. The peremptory writ must follow the alternative writ, and thereby the respondents would be required to violate the express provisions of sections 4 and 5 aforesaid if the averments in the alternative writ are true.

"Third. It is extremely doubtful whether the city council of the city of Omaha, sitting as a board of equalization, has power to review the proceedings of the board of review. I suggest that this is doubtful, without definitely committing myself on that proposition. I do not hesitate, however, to recommend, and do recommend, that in the exercise of its discretion this court shall refuse to issue a peremptory writ, and that it dismiss this action at the costs of the answering respondents, Isaac S. Hascall, David T. Mount, Simon Trostler, William B. Whitehorn and Myron D. Karr. All of which is respectfully submitted."

It was the duty of the board of equalization to hear and determine the merits of the complaints in question. The assessment is made by the commissioner and his deputies, and is reviewed and completed by the board of review. When it is submitted to the city council as a board of equalization it becomes the duty of the board, under the statute, to equalize the assessment. Then the citizens have their first opportunity to complain of inequalities, if any exist, and to have them corrected. Section 63 of the act incorporating metropolitan cities provides: "The council shall have power to act as a board of equalization for the city to equalize all taxes and assessments, and to correct any errors in the listing or valuation of property, and to supply any omissions in the same, but shall sit only after reasonable public notice." Compiled Statutes, ch. 12a. The board can not "equalize all taxes and assessments" without considering comparative values. The purpose of equalization is to "bring the assessments of different parties to the same relative standard so that no one may be compelled to pay a disproportionate part of the tax." Cooley, Taxation, 421. The right of a taxpayer to make complaint before the board and have corrected inequalities in the assessments which result in increasing his burden of taxes is a substantial right and can not be denied him. The board must receive his complaint, hear evidence upon the question of inequalities in the assessments presented thereby, determine the facts, and equalize the assessments. In so doing it is a judicial tribunal, and, as far as possible, must be governed by the ordinary rules of evidence. State v. Dodge County, 20 Neb. 595, 31 N.W. 117. It is clear from the facts found by the referee that the relators have been deprived of a right given them by the statute; but the referee concludes that the writ should not be issued, for the reasons given in his conclusions of law above stated. Section 32, art. 1, of the revenue act requires statements of these corporations made to the assessor to set forth particularly: "First--The name and location of the company or association. Second--The amount of capital stock authorized, and the number of shares into which such capital stock is divided. Third--The amount of capital stock paid up. Fourth--The market value, or if no market value then the actual value of the shares of stock. Fifth--The total amount of all indebtedness, except the indebtedness for current expenses--excluding from such expenses the amount paid for the purchase or improvement of property. Sixth--The assessed valuation of all its real and personal property (which real and personal property...