Steinacher v. Swanson, 29829

CourtNebraska Supreme Court
Writing for the CourtCARTER, J.
Citation268 N.W. 317,131 Neb. 439
PartiesHENRY STEINACHER, APPELLANT, v. HARRY E. SWANSON, COUNTY TREASURER, APPELLEE: LOGAN A. ROGERS, INTERVENER, APPELLANT
Docket Number29829
Decision Date08 July 1936

268 N.W. 317

131 Neb. 439

HENRY STEINACHER, APPELLANT,
v.

HARRY E. SWANSON, COUNTY TREASURER, APPELLEE:

LOGAN A. ROGERS, INTERVENER, APPELLANT

No. 29829

Supreme Court of Nebraska

July 8, 1936


APPEAL from the district court for Fillmore county: ROBERT M. PROUDFIT, JUDGE. Reversed.

REVERSED. [268 N.W. 318]

Syllabus by the Court.

1. The extraordinary session of the legislature which assembled on October 28, 1935, was properly constituted under the provisions of section 1, art. 3 of the Constitution as it existed prior to November 6, 1934.

2. The initiative petition adopted by the people of Nebraska on November 6, 1934, amending section 1, art. 3 of the Constitution, to provide for a unicameral legislature, does not become operative by its own terms until the first Tuesday in January, 1937.

3. The title to chapter 15, Laws 1935, Ex.Sess., does not violate section 14, art. 3 of the Constitution which provides: " No bill shall contain more than one subject, and the same shall be clearly expressed in the title."

4. That part of chapter 15, Laws 1935, Ex.Sess., which provides that under certain conditions delinquent personal taxes may be paid in five equal annual instalments contravenes that part of section 4, art. 8 of the Constitution which provides, in part, " nor shall commutation for such taxes be authorized in any form whatever."

5. That part of chapter 15, Laws 1935, Ex.Sess., which provides that under certain conditions delinquent real estate taxes may be paid in ten equal annual instalments also contravenes that part of section 4, art. 8 of the Constitution prohibiting a commutation for taxes in any form whatever.

6. The words " interest," " penalties" and " costs," as generally used in taxing statutes, [268 N.W. 319] are considered as penalties and not a part of the tax.

7. The legislature does not have the power to release or discharge a tax, such action being prohibited by section 4, art. 8 of the Constitution.

8. Neither may the legislature circumvent an express provision of the Constitution by doing indirectly what it may not do directly.

9. Under the provisions of section 4, art. 8 of the Constitution, the legislature does not have the power to extend the time of payment of a tax after it has been regularly assessed and levied.

10. " By section 18, art. 3 of the Constitution, the legislature is prohibited from passing any act granting to an individual any special or exclusive privileges or immunity, and it is provided that, in all cases where a general law can be made applicable, no special law shall be enacted. Held, to prohibit class legislation which does not operate equally and uniformly upon all members of the class brought within its operation." State ex rel. Taylor v. Hall, 129 Neb. 669, 262 N.W. 835.

11. " The legislature may make a reasonable classification of persons, corporations and property for purposes of legislation concerning them, but the classification must rest upon real differences in situation and circumstances surrounding the members of the class relative to the subject of the legislation, which render appropriate its enactment; and to be valid the law must operate uniformly and alike upon every member of the class so designated." State ex rel. Taylor v. Hall, 129 Neb. 669, 262 N.W. 835.

12. The classification designated in chapter 15, Laws 1935, Ex.Sess., upon which the act was to operate, is unreasonable and arbitrary and inimical to section 18, art. 3 of the Constitution of Nebraska.

Appeal from District Court, Fillmore County; Proudfit, Judge.

Action by Henry Steinacher, in person and for all other persons similarly situated, against Harry E. Swanson, County Treasurer of Fillmore County, wherein Logan A. Rogers intervened. From a judgment dismissing the action after sustaining a general demurrer to the petition, plaintiff appeals, and from a judgment dismissing the petition in intervention after sustaining a general demurrer thereto, intervener appeals.

Reversed and remanded.

John C. Gewacke and Guy A. Hamilton, for appellant Steinacher.

Keith K. Turner, for intervener, appellant.

Sloans, Keenan & Corbett and William I. Aitken, contra.

William H. Wright, Attorney General, Milton C. Murphy and Lester A. Danielson, amici curiae.

Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY, PAINE and CARTER, JJ. PAINE, J., dissenting.

OPINION

[131 Neb. 441] CARTER, J.

The plaintiff, as a taxpayer, commenced this action against the county treasurer of Fillmore county praying for an injunction to restrain the defendant from complying with the provisions of House Roll No. 4, now chapter 15, Laws 1935, Special Session, on the ground that said act was unconstitutional and void. The trial court sustained a general demurrer to the petition and dismissed the action. From this judgment, plaintiff appeals.

It also appears from the record that one Logan A. Rogers was granted leave to file a petition in intervention in which he alleges that said act is unconstitutional for the reason that on November 6, 1934, an initiative petition was submitted to and adopted by the voters of the state which provided for a unicameral legislature for Nebraska; that on May 18, 1935, in accordance therewith, an act was passed declaring that the legislature should consist of one house with 43 members, while the special session which convened on October 28, 1935, consisted of two houses contrary [131 Neb. 442] to the provisions of the Constitution and the statutes of Nebraska then in force. A general demurrer to the petition in intervention was sustained by the trial court and the petition in intervention dismissed. From this dismissal, the intervener also appeals.

We will first discuss the ruling of the trial court on the demurrer to the petition in intervention. It is the contention of intervener that chapter 15 was passed by an extraordinary session of the bicameral [268 N.W. 320] legislature at a time when it had been abolished by constitutional amendment. Section 1, art. III of the Constitution, as amended by the initiative petition adopted November 6, 1934, provides, in part, as follows: "Commencing with the regular session of the legislature to be held in January, nineteen hundred and thirty-seven, the legislative authority of the state shall be vested in a legislature consisting of one chamber." By the express statement of the constitutional amendment adopted, it was not to become effective until January, 1937. By its own terms, the amendment to the Constitution was not effective until the commencement of the regular session in 1937. Until it became effective the old bicameral legislature was the regularly constituted legislative authority in this state. The contention of intervener that the extraordinary session of the legislature had no legal existence, because of the amendments referred to, is without merit and the trial court very properly dismissed his petition.

It is contended by plaintiff that the title to the act is defective in that it violates section 14, art. III of the Constitution of Nebraska which provides, in part: "No bill shall contain more than one subject, and the same shall be clearly expressed in the title. And no law shall be amended unless the new act contain the section or sections as amended, and the section or sections so amended shall be repealed." The title to the act is, in part, as follows: "An act relating to revenue; to provide for and accelerate the payment of delinquent taxes on real and personal property which have been delinquent for more than one (1) year prior to September 1, 1935, by permitting payment [131 Neb. 443] of all such taxes either by payment in full or in the case of personal property in five (5) annual equal instalments and in the case of real property in ten (10) annual equal instalments, without interest, penalties or other charges added thereto; to provide penalties for defaults; and to amend sections" (here follows a list of amended sections), "and to repeal said original sections, and to declare an emergency."

This act is clearly one which relates to the revenue. Its title sets forth the salient points covered in the body of the act, including the sections of laws amended and repealed. Without going into this subject further, we hold that the title to the act meets all the requirements of that part of the constitutional provision hereinbefore quoted.

The act in substance provides that (1) if a taxpayer on or before September 1, 1936, pays his 1935 real or personal taxes in full with interest and penalties, he may then discharge all of his real or personal taxes which became delinquent before September 1, 1935, by paying only the principal amount thereof without interest, penalties or costs added. (2) If he is not able to pay such delinquent taxes in full in cash, a method is provided by which he may pay his delinquent personal taxes in five annual instalments, or his delinquent real estate taxes in ten annual instalments, all without interest, penalties or costs. These provisions are made to apply where tax sale certificates have been issued to and are still owned and held by a county or other governmental subdivisions. The act, however, does not apply where the delinquent taxes have been sold to a bona fide purchaser and a tax sale certificate issued prior to the passage of the act. Neither does it apply where the tax was levied for a special purpose or levied as a special assessment.

It is first contended that the act violates section 4, art. VIII of the Constitution of Nebraska. This section provides: "The legislature shall have no power to release or discharge any county, city, township, town or district whatever, or the inhabitants thereof, or any corporation, or the [131 Neb. 444] property therein, from their or its proportionate share of taxes to be levied for state purposes, or due any municipal corporation, nor shall commutation for such taxes...

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