Wood v. McCook Water-Works Co.

• Decision Date: 12 November 1914
• Docket Number: 17,845
• Citation: 149 N.W. 417,97 Neb. 215
• Parties: ARTHUR B. WOOD, TREASURER, APPELLEE, v. MCCOOK WATER-WORKS COMPANY, APPELLANT
• Court: Nebraska Supreme Court

149 N.W. 417

97 Neb. 215

ARTHUR B. WOOD, TREASURER, APPELLEE, v. MCCOOK WATER-WORKS COMPANY, APPELLANT

No. 17,845

Supreme Court of Nebraska

November 12, 1914

APPEAL from the district court for Red Willow county: ERNEST B PERRY, JUDGE. Affirmed.

AFFIRMED.

Frank E. Bishop, John E. Kelley and C. E. Eldred, for appellant.

W. M Somerville and C. D. Ritchie, contra.

FAWCETT J. LETTON, ROSE and SEDGWICK, JJ., not sitting.

OPINION

FAWCETT, J.

This action was brought by plaintiff in his official capacity, in the district court for Red Willow county, to recover taxes upon personal property assessed against the defendant for the year 1911. A general demurrer to the petition was overruled, and, defendant declining to plead further, judgment was entered for plaintiff for the amount of the tax. Defendant appeals.

The petition alleges substantially: That on April 1, 1911, defendant was a corporation, with its principal office and place of business and all of its property, upon which the tax was assessed, located in the city of McCook, and also in school district No. 17; that on that date defendant was engaged in selling water to the city of McCook and its inhabitants, was the owner of a valuable plant and of a franchise permitting it to engage in such business in that city; that on or about May 20, 1911, defendant, for the purpose of listing its franchise and personal property for taxation, made out a sworn statement and delivered the same to the assessor; that by such statement the company listed and valued all tangible personal property owned by it on the 1st day of April, 1911, at the sum of $ 43,550; that thereupon the assessor duly fixed and made a valuation of such property on the 1st day of April, 1911, at the sum named and fixed and made the assessed valuation thereof at the sum of $ 8,710; that on or about the 27th day of July, 1911, there was levied against the property a tax of 6.5 mills for state purposes, and on the 3d day of August, 1911, there was levied a tax for county, state and school district purposes aggregating 41.1 mills; that by reason of such listing, assessing and levying of taxes there became due and owing from defendant to plaintiff, as treasurer, the sum of $ 811.77 personal tax, no part of which has been paid; that on October 30 the said assessments were duly transcribed into the tax list of the county clerk, and on or about that date the county clerk attached a warrant to such tax list commanding the treasurer to collect the same; that on the 1st day of July, 1911, the defendant sold and delivered its water-works plant and all property connected therewith to the city of McCook, for the sum of $ 65,000; that on February 1, 1912, plaintiff issued a distress warrant directed against defendant for the amount of the tax and interest, and on February 8 the warrant was returned unsatisfied. Wherefore the plaintiff prays judgment for $ 811.77, with interest at the rate of 10 per cent. per annum from the 1st day of December, 1911.

The assignments of error are that the court erred in overruling the demurrer and in rendering judgment against defendant. The contention of defendant is that the sale and delivery by defendant of its property to the city of McCook on July 1 was prior to the completion of the assessment for 1911, and prior to the levy of any tax for that year; that the property was exempt from taxation as soon as it became the property of the city; that the assessment was not completed and did not become final until after the value, as found by the local assessor, had been corrected by the county assessor and equalized by the county and state boards of equalization; that the levy of tax was not made and did not become a lien until after the property had been transferred to the city; that "the principal question involved then is: The property having been transferred into the hands of the city of McCook, where it was exempt from taxation, prior to the time the assessment was completed, and levy of tax made, and prior to the time when the tax would become a lien upon the property, was the attempted taxation void?" The district court answered this question in the negative.

In a typewritten memorandum, submitted by counsel for defendant by leave of court after the arguments at the bar, it is claimed that the statute does not fix any definite date when personal property shall be assessed either as to valuation or ownership; that the whole matter of assessment is progressive, and is not concluded until the work of the assessor, the county board and the state board is completed in the final levy made after all their work is done, which was August 3 in this case.

Prior to 1903, section 6, art. I, ch. 77, Comp. St. 1901, of the revenue law, provided: "Personal property shall be listed between the first day of April and the first day of June of each year, when required by the assessor, with reference to the quantity held or owned on the first day of April in the year for which the property is required to be listed." By an act...