Rohrbough v. Douglas County
107 N.W. 1000
Neb.
1906
Check Treatment
Oldham, C.

This was an appeal from the board of equalization of Douglas county in the matter of the assessment of certain property situated in Omaha, and used by the owners thereof mainly as a commercial college, known as the “Rohrbough Commercial College.” The appeal was tried in the district court on the following stipulation of facts: “It is hereby stipulated by and between the parties in the above entitled action that lot 5, in block 115, in the city of' Omaha, Nebraska, and the building thereon, is the - property of M. G. and G. A.. Rohrbough. It is further, stipulated that all of said real estate is used exclusively for commercial college purposes, as shown by exhibit A of the petition, except the east room in the basement and the third story in said building, which said basement room and said third story are rented by the said Rohrboughs for • *680commercial purposes. It is further stipulated and agreed by and between the parties in the aboye entitléd action that said basement room and the said third story constituted 17 J per cent, of the whole value of said real estate, and that' the remaining 82\ per cent, in value of said real estate represented by the balance of the basement story, the first, second and fourth stories of said building are used by the plaintiffs exclusively for commercial college purposes, as shown by exhibit A of the petition. It is further stipulated by and between the parties that plaintiffs own the said property, and that it was used exclusively for commercial college purposes as shown by exhibit A of the petition to the extent of 821,- per cent, of its value at and prior to the time of the assessment made by said county, of which assessment the plaintiffs bring complaint.. Assessor’s valuation $14,000; assessed valuation $2,800.” Exhibit A, referred to in the stipulation, is the course of study taught in the institution, consisting of such branches as arithmetic, penmanship, reading, grammar, history, bookkeeping, shorthand, typewriting, French, Spanish, and German language, etc. This exhibit also shows the tuition charged for instruction in the various branches of study. On this stipulation of facts the court found that at the time of the assessment all of the premises, except the east room in the basement and the third story of the building, was and is used exclusively for school purposes, and is exempt from taxation; that the value of the premises exclusively used for school purposes is 82¿ per cent, of the whole of the lot in dispute; and, that the school conducted in the premises produces an income from tuition fees and is' conducted in part for private gain. On these findings. the court reduced the amount of the assessment 82^ per cent., the agreed proportionate value used exclusively for school purposes. To reverse this judgment the county appeals to this court.

Section 2 of article 9 of the constitution of Nebraska empowers the legislature to exempt from taxation the property of the state, counties, and municipal corpora*681tions, both real and personal, and shch other property as may be exclusively used for agricultural and horticultural societies, for schools, religious, cemetery, and charitable purposes.. Under the authority so conferred, the legislature enacted section 13, art. 1, ch. 77, Comp. St., which exempted from taxation — First, all property of the state, counties, and municipal corporations. Second, such other property as may be used exclusively for agricultural and horticultural societies, for schools, religious, cemetery, and other charitable purposes.

It will be noticed that neither the constitution, nor the statute passed in furtherance of its provisions, makes any reference to schools conducted for gain, or to public as distinguished from private schools. Consequently, cases cited in the brief of the county attorney from states whose constitutions or statutes contain this limitation on the exemption lend little assistance in determining the question at issue, and it seems to us unnecessary to go beyond the construction of our own statute by this court to determine whether or not a commercial college, teaching the branches enumerated in exhibit A of the petition, is a school within the meaning of the exemption. In Omaha Medical College v. Rush, 22 Neb. 449, it was said that “the word ‘school’ in section 2, art. I, ch. 77, Comp. St. means an institution of learning, and is not limited to the lower grades of schools.” In this case it was determined that a medical college was a school within the meaning of the statute. In Academy of the Sacred Heart v. Irey, 51 Neb. 572, the entire property was used for educational purposes, and it was held to be all exempt from taxation.. In Scott v. Society of Russian Israelites, 59 Neb. 572, it was determined that it was the use and not the ownership of the property that exempted it from taxation. In Watson v. Cowles, 61 Neb. 216, the property was used as a commercial college, and it was held that during the years in which it was exclusively used for commercial college purposes it was not subject to taxation. In these several decisions it has been determined that a medical college, *682the Academy of the Sacred Heart, and a commercial college are all schools within the meaning of the exemption of onr' statute, and that where buildings and grounds are used exclusively for these purposes they are exempt from taxation.

The question not covered by these decisions is as to the right to a proportionate exemption in property used partly for exempt and partly for other purposes.. This question was before this court in the case of Young Men’s Christian Ass’n v. Douglas County, 60 Neb. 642. Here a part of the building was used for charitable, educational and religious purposes and a part for commercial purposes, and it was held that the part of the building used for commercial purposes was subject to taxation; and in reaching this conclusion, it was said: “We do not desire to be understood as holding that all of the property mentioned in the petition of appellant is subject to taxation, but only that part which was used for other than the purposes contemplated by the organization maintained by appellant.”

We think these decisions fully support the judgment of the trial court, and we recommend that it be affirmed.

Ames and Epperson, CO., concur.

By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is

Affirmed.