State ex rel. Sorensen v. State Bd. of Equal. (In re Lines)

Decision Date18 May 1932
Docket NumberNo. 28085.,28085.
Citation123 Neb. 259,242 N.W. 609
PartiesIN RE EQUALIZATION OF ASSESSMENT OF NATURAL GAS PIPE LINES. STATE EX REL. SORENSEN, ATTY. GEN., ET AL. v. STATE BOARD OF EQUALIZATION AND ASSESSMENT (SOMMERVILLE, INTERVENER).
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

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, Hugh La Master, and Loren H. Laughlin, all of Lincoln, for plaintiff in error.

F. C. Radke, of Lincoln, Barlow Nye, of Kearney, and Clark Jeary, of Lincoln, for defendant in error.

N. M. Sommerville, pro se.

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

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:

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, 622, 18 L. R. A. (N. S.) 664, in which is cited a New Jersey case (Attorney General v. Delaware & B. B. R. Co., 27 N. J. Eq. 631) 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 court 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, 280 P. 910, 66 A. L. R. 1369, 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, § 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 ...

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