62 Neb. 428 | Neb. | 1901
This is an original action by quo warranto to oust the defendant from the office of tax commissioner of the city of Lincoln. The petition alleges that the defendant, about April 10, 1901, assuming that an act of the legislature of March 27, 1901, created the office of tax commissioner, qualified as such officer, claiming to have been appointed by the mayor with the consent of the city council. It is alleged that the defendant is not an assessor of any precinct in Lancaster county; that since April 10 he has unlawfully held and exercised the office of tax commissioner,
It will be seen that the sole question presented for consideration here is the constitutionality of this act of March 27, 1901, or at least of so much of it as seeks to create the office of tax commissioner. In relator’s brief and argument it is objected, first, that this law is so vague and uncertain as to be inoperative and void for uncertainty; second, that it violates the provisions of our state constitution in regard to uniformity of taxation; third, that it is special legislation, and so prohibited by section 15, article 3, of the constitution; fourth, that it is void, as being a violation of section 11, article 3, of the constitution, in that it amends the general revenue law in several places which are not referred to in the act, nor the original provisions repealed; and fifth, that it violates the same section of the constitution, in containing provisions not covered by its title. It will be observed that we are concerned here with this act only in so far as it seeks to create the office of tax commissioner, and that the relator, to make ont his case, must establish either that tbe entire act is unconstitutional or else that those parts of it which create the office of tax commissioner are so. A large share of the argument of counsel was directed to the proposition that certain provisions of .this act, not directly relating to the creation of the office of tax commissioner, but relating to the manner in which he shall discharge his duties, and in which the city council, in levying taxes, should proceed, are unconstitutional. At the same time no
The first contention, that the act is too vague to be operative, can not be sustained. It is urged principally upon the ground that the tax commissioner is required to make oath to the correctness of the entire assessment, and is empowered to appoint five deputies to assist in the making of it, and it is urged that such assistance is incompatible with personal knowledge on his part of the correctness of the return. It is answered that a similar objection could be made to the constitutionality of any of our statutes providing for the work of a deputy and a return to be made by the principal. It is not thought worth while to consider this objection further. The regular precinct assessor is required to make such a return, and is authorized under certain circumstances to employ a deputy. Compiled Statutes, ch. 77, art. 1, sec. 51. The tax commissioner, like the assessor, is only required to make oath to his own diligence, and that he verily .believes that his returns set out the true value. If the law is incomplete in some respects, it could hardly be objected to as inoperative for such reason, for we find at the end of section 33 the provision “the tax commissioner shall have such other and further duties and powers as may be defined or prescribed by ordinance.” . If it be found necessary or desirable that he should require a like return from his deputies, it may be easily provided.
It is objected that the deputies are to be under the direction of the tax commissioner and governed by such regulations as may be prescribed for the purpose of securing just and equitable assessments, but surely there can be no objection to this in view of the provision in section 33, just quoted.
A more serious objection is lack of uniformity. Section 1, article 9, of our state constitution requires,that the valuation within the same taxing district shall be uniform. It is complained that under this act all property is to be assessed at its fair cash value, except railroad property, whose
The complaint that this is special legislation prohibited by section 15, article 3, seems to be based upon the proposition that it is special because of the provision with regard to railroad property. So far as this provision is concerned, it seems sufficient to have pointed out that the office of tax commissioner, and the right of respondent to hold it, does not depend in any degree upon the validity or invalidity of this provision in the act. Whether in discharge of his duties he shall obey and follow this provision or pay no attention to it, does not need to be decided for a determination of his title to the office which he is exercising. In none of the cases cited by counsel for the relator do we find that the conferring of unconstitutional powers upon an officer deprives him of his right to exercise the constitutional ones; nor do we think that an unconstitutional restriction of an officer’s powers should be held to deprive him of them altogether. The remedy for an unconstitutional omission to assess property would seem to be mandamus rather than quo warranto. This objection amounts in effect to saying that no general act of. the title and for the purpose of this one can be enacted by the legislature of the state of Nebraska, owing to the inhibition upon special legislation. The objection is just as good against any other provision of this charter for cities from 40,000 to 100,000 inhabitants as it is against
The further objection that the law is amendatory of the state revenue law and unconstitutional,because of its form, can not be maintained. It is expressly provided by our state constitution that such a charter may contain provisions for municipal taxation. Such provisions are not amendatory of the state revenue law. The fact that the title ivas comprehensive and not detailed, makes no difference so loug as such title is fairly descriptive of the purposes anu intention of the act. State v. Stuht, supra. To say that this áct may be abused and may, in its practical workings, result in a failure of uniformity of taxation is not to establish its unconstitutionality. If all laws Avhich may fail to bring about a just and equal valuation of property and a perfectly fair and equitable adjustment of taxation are to be unconstitutional, it is to be feared that not only the city of Lincoln, but every other municipality in the state of Nebraska, might have to wait a long Avhile for authority to collect its revenues.
It is therefore recommended that this case be dismissed.
For the reasons stated in the foregoing opinion this case is hereby
Dismissed.