State v. Odd Fellows Hall Ass'n

• Decision Date: 01 July 1932
• Docket Number: 28133
• Citation: 243 N.W. 616,123 Neb. 440
• Parties: STATE OF NEBRASKA ET AL., APPELLANTS, v. ODD FELLOWS HALL ASSOCIATION ET AL., APPELLEES
• Court: Nebraska Supreme Court

243 N.W. 616

123 Neb. 440

STATE OF NEBRASKA ET AL., APPELLANTS, v. ODD FELLOWS HALL ASSOCIATION ET AL., APPELLEES

No. 28133

Supreme Court of Nebraska

July 1, 1932

APPEAL from the district court for Douglas county: WILLIAM G HASTINGS, JUDGE. Reversed, with directions.

REVERSED.

Syllabus by the Court.

1. County boards of equalization " shall hold a session of not less than three and not more than twenty days" and, during the time thus limited by law, are vested with ample power, upon proper complaint, to hear, investigate, and determine, from competent evidence, the tax exempt character of real estate.

2. County boards of equalization are limited to a period of twenty days, not necessarily continuous, with power to adjourn from day to day, or time to time, and jurisdiction to exercise their statutory functions within the time thus defined until July 10th of any year, but no longer.

3. Section 77-1705, Comp. St. 1929, and cognate sections, providing for appeals from the orders of county boards of equalization, neither enumerate the persons or classes of persons entitled to appeal, nor do they attempt to limit or preclude the exercise of that right by any person, representative, or entity whose interest may be adversely affected by any action taken by the county board of equalization.

4. The state being an " entity" that may be adversely affected by the action of county boards of equalization in their determination of the assessability of property, and being a " person" within the meaning of the revenue act, is entitled to an appeal from an adverse decision of such board exempting property from taxation as being " owned and used exclusively for educational, religious, charitable or cemetery purposes," and " not owned or used for financial gain or profit to either the owner or user."

5. When the state of Nebraska appeals from the action of a county board of equalization, it may do so by causing a statutory written notice to be served on the county clerk within twenty days after the making of the decision appealed from. No bond for costs, appeal, or supersedeas of any kind may be required of the state as a prerequisite to its exercising the right of appeal.

6. Notice of appeal and service thereof as given and made in the instant case, approved .

7. The words of section 28, art. 4 of the Constitution of Nebraska, viz., " A tax commissioner shall be appointed by the governor with the advice and consent of the senate. He shall have jurisdiction over the administration of the revenue laws of the state," construed as self-executing, and in connection with section 77-301, Comp. St. 1929, constitute this officer an administrative agency charged with the duty of securing a just and uniform enforcement of the revenue laws of the state, and empower him, in the name of the state of Nebraska, to prosecute appeals from orders of county boards of equalization exempting property from taxation.

Appeal from District Court, Douglas County; Hastings, Judge.

Proceedings in the matter of the assessment for taxation of certain property of the Odd Fellows Hall Association and others. From separate judgments of the district court, entered in each case, dismissing appeals from the order of the Board of Equalization of Douglas county, the State and the State Board of Equalization and Assessment of Nebraska appeal.

Judgments of the district court reversed, and causes remanded, with directions.

C. A. Sorensen, Attorney General, and Hugh LaMaster, for appellants.

Raymond G. Young, Kelso A. Morgan, Rosewater, Mecham, Burton, Hasselquist & Chew, Joseph A. Vojir, Howell, Tunison & Joyner, A. W. Jefferis, Votava & McGroarty, Daniel J. Gross, J. H. Adams, J. J. Krajicek, H. M. Baldrige, William Raab, T. B. Dysart, O'Sullivan & Southard, Gerald M. Vasak, James T. English, G. F. Nye, Brown, Fitch & West, Smith, Schall & Sheehan, W. C. Ramsey, James M. Patton, and Montgomery, Hall & Young, contra.

Heard before GOSS, C. J., ROSE, DEAN, EBERLY, DAY and PAINE, JJ., and RYAN, District Judge.

OPINION

EBERLY, J.

In this cause are presented appeals by the state of Nebraska and the state board of equalization and assessment, as appellants, from a judgment entered by the district court for Douglas county dismissing appeals by these appellants from the order of the board of equalization of Douglas county entered on the 19th day of August, 1930, purporting to exempt from taxation for that year certain real estate owned in severalty by the appellees herein, situated in that county, as property "owned and used exclusively for educational, religious, charitable or cemetery purposes, when such property is not owned or used for financial gain or profit to either the owner or user." Const. art. VIII, sec. 2. The appellees are twenty-seven in number. The rights of each are involved in a separate and distinct appeal to this court, and relate to separate and distinct real estate. However, for mutual convenience, these cases have been, in effect, consolidated, argued, and presented here as one case.

The record discloses that the notice of appeal was served by the appellants on the 8th day of September, 1930; an appeal bond was at that time filed and approved, and a complete transcript of the proceedings of the board of equalization in all cases appealed from was, on the same day, filed in the district court for Douglas county. On the 19th day of June, 1931, after hearing thereon, the appeals from the board of equalization of Douglas county, so taken by appellants, were dismissed by the district court for Douglas county, "for the reason that the court has no jurisdiction herein and the said appellants no authority to take said appeals." So, in each of these cases but two questions were presented and decided by the trial court, viz.: First, Did it possess jurisdiction of the appeals? Second, Were the state of Nebraska and the board of equalization and assessment, or either of them, competent as parties litigant to present the questions involved? Both were decided against the appellants.

The following sections of the statutes are pertinent in view of the questions before us:

"The county board, the county assessor and county clerk shall constitute the county board of equalization, and the county clerk shall be the clerk of said board." Comp. St. 1929, sec. 77-1701.

"The county board shall hold a session of not less than three and not more than twenty days, for the purpose contemplated in this section, commencing on the first Tuesday after the second Monday of June each year, and" (for the purpose of this hearing the remainder of this section will be taken as conferring ample power and authority upon the board of equalization of Douglas county of 1930, during the time limited by law, upon proper complaint, to hear, investigate, and determine from competent evidence the tax exempt character of the different tracts and parcels of real estate of the several appellees described in these several complaints). Comp. St. 1929, sec. 77-1702. See State v. Drexel, 75 Neb. 751, 107 N.W. 110.

"Appeals may be taken from any action of the county board of equalization to the district court within twenty days after its adjournment, in the same manner as appeals are now taken from the action of the county board in the allowance or disallowance of claims against the county." Comp. St. 1929, sec. 77-1705.

It may be said in passing that section 77-1707, Comp. St. 1929, provides: "The county assessor, immediately after the board of equalization shall have completed its labors, shall prepare an abstract of the assessment rolls of his county on blanks to be furnished by the state board, (the values to be given shall be as equalized and corrected by the county board,) and forward it to the state board of equalization and assessment on or before the tenth day of July."

Under these provisions this court has determined that a county board of equalization is limited to a session of twenty days, not necessarily continuous, but that it may adjourn from day to day, or time to time, and jurisdiction to exercise its vested powers may thus continue until July 10th in any year, but no longer. Missouri P. R. Corporation v. Board of Equalization, 114 Neb. 84, 206 N.W. 150; Hiller v. Unitt, 113 Neb. 612, 204 N.W. 208.

In proper construction of this language providing for an appeal from the determinations of the board of equalization, it may be said that section 26-119, Comp. St. 1929, provides in part: "And when the claim of any person against the county is disallowed, in whole or in part, by the county board, such person may appeal from the decision of the board to the district court of the same county, by causing a written notice to be served on the county clerk, within twenty days after making such decision and executing a bond to such county, with sufficient security, to be approved by the county clerk, conditioned for the faithful prosecution of such appeal, and the payment of all costs that shall be adjudged against the appellants."

Section 26-120, Comp. St. 1929, provides: "Any tax-payer may likewise appeal from the allowance of any claim against the county by serving a like notice within ten days and giving a bond similar to that provided for in the preceding section."

Section 26-121, Comp. St. 1929, provides: "The clerk of the board, upon such appeal being taken, and being paid the proper fees therefor, shall make out a complete transcript of the proceedings of the board relating to the matter of their decision thereon, and shall deliver the same to the clerk of the district court, and such appeal shall be entered, tried, and determined the same as appeals from justice courts," etc.

It is to be noted, however, that section 20-2231, Comp. St. 1929 provides: "No...