Knoefler Honey Farms v. County of Sherman
Knoefler Honey Farms v. County of Sherman
Opinion of the Court
This case arises out of a decision of a coünty board of
On September 26, 1972, the appellant was notified that the board of equalization of Sherman County was to meet on October 4 of that year for the purpose of considering whether certain bee hives owned by the appellant should be added to the tax assessment rolls of the county. That hearing was held as scheduled and the matter was taken under advisement. On October 25, 1972, the board notified the appellant that it had decided to add the bee hives to the assessment rolls as omitted property. The appellant determined to protest that decision, and the hearing on that protest was held before the county board of equalization on November 8, 1972. At that meeting, the members of the board of equalization voted to follow the county assessor’s recommendation to add the property in question to the assessment rolls, and also to have the chairman sign the notice of such addition. The transcript of such proceedings before the county board of equalization contains that notice, dated November 8, 1972, addressed to the appellant herein. The notice in question was on a form approved by the State Tax Commissioner and contained, among other things, the following language: “You are further notified that the action of the County Board of Equalization may be appealed to the District Court of this County in same manner as appeals are taken from
The record reflects that on December 22, 1972, the appellant submitted notice of his intention to prosecute an appeal to the District Court, together with a request that a transcript of the proceedings before the county board be prepared. Appellant also filed an appeal bond on that date. On December 26, 1972, the appellant filed his petition on appeal with the District Court. On the same date the transcript of the proceedings before the county board of equalization was filed with the court. Subsequently, the appellee filed a motion to dismiss on the ground that the District Court lacked jurisdiction, citing section 77-1510, R. R. S. 1943, and section 23-135, R. R. S. 1943, for the proposition that since the appellant had not filed his notice of appeal within 20 days of the decision of the county board, the District Court was without jurisdiction to pass on the merits of that decision. Upon consideration, the District Court found that the board of equalization had given the appellant notice of its decision of November 8, 1972, as provided by law, and also found that appellant’s notice of appeal had not been served within 20 days of the decision of the county board, and that the court lacked jurisdiction over the appeal. The District Court thereupon entered an order granting the appellee’s motion to dismiss, from which order appellant has appealed to this court.
The key provision with which this appeal is concerned is section 77-1510, R. R. S. 1943, which provides in part that: “Appeals may be taken from any action of the county board of equalization to the district court within forty-five days after adjournment of the board, in the same manner as appeals are now taken from the action of the county board in the allowance or disallowance of
The argument of the appellant presents a different interpretation of sections 77-1510 and 23-135, R. R. S. 1943. It argues that although a 20-day period of limitation in which to file notice of appeal applies in other oases falling under section 23-135, R. R. S. 1943, that period is not controlling where the appeal is being brought pursuant to section 77-1510, R. R. S. 1943. Thus, the appellant asserts that the 45-day period established in the more specific statute, section 77-1510, R. R. S. 1943, which deals with appeals from county board of equalization, overrides the 20-day period provided for in section 23-135, R. R. S. 1943.
We are convinced from an investigation of the history of sections 77-1510 and 23-135, R. R. S. 1943, that appellant’s interpretation of those sections is correct. From the time of its inception, section 23-135, R. R. S. 1943, has provided that written notice of the intent to appeal must be filed within 20 days of the time of the decision. See Laws 1879, § 37, p. 366. With the exception of a period between 1907 and 1913, during which period no time
We have examined the available legislative history of the 1959 amendment to section 77-1510, R. R. S. 1943, which extended the time period for appeals from 20 days to 45 days. That examination failed to disclose any reference to section 23-135, R. R. S. 1943, and we can only assume that no actual consideration was given to section 23-135, R. R. S. 1943, at that time. If the legislators, in adopting the 1959 amendment to section 77-1510, R. R. S. 1943, had discussed the relationship of that amendment to section 23-135, R. R. S. 1943, then obviously the intention of the Legislature in that regard would be more clear. As it is, however, we can only conclude that in all probability the Legislature must not have, contemplated that the 20-day limitation period appearing in section 23-135, R. R. S. 1943, would have any effect at all upon appeals brought pursuant to section 77-1510, R. R. S. 1943. In short, it is most likely that the Legislature understood that in adopting the 1959 amendment to section 77-1510, R. R. S. 1943, it was establish
The appellee would have us reconcile sections 23-135 and 77-1510, R. R. S. 1943, by interpreting the former as establishing a time limitation for the filing of notice of appeal, while regarding the latter as fixing a time limitation for all other activities necessary to perfect an appeal to the District Court in cases such as this one. It must be added, of course, that if two time limitation periods apply in these cases, that is, one period for filing notice of appeal and another period for the carrying out of all other things necessary to perfect appeal, then not only is the perfecting of an appeal controlled by two different time limitation periods, but it is also controlled by two periods that may well begin to run at different times. Under section 23-135, R. R. S. 1943, the 20-day period of limitation begins to run on the day that the county board makes the decision from which appeal is to be taken. However, pursuant to section 77-1510, R. R. S. 1943, the 45-day period of limitation begins to run on the day that the county board of equalization adjourns. Thus, under the system proposed by the appellee, it would even be possible for the 45-day time limitation period to begin to run after the 20-day time limitation period had expired. It would be possible that a taxpayer, wishing to appeal from a decision made on the first day of a 60-day session of the board would be required to file his notice of appeal within 20 days after the decision and yet still have well over 2 months in which to carry out all other activities necessary to perfect his appeal. We believe it is highly unlikely that the Legislature would have intentionally devised such a complicated system for the bringing of appeals such as that involved herein.
The confusing nature of the results to which the argument of the appellee would result in is further emphasized when the full complexity of the statutory scheme
The addition of the appellate procedure provided for in former sections 27-1301 to 27-1315, R. R. S. 1943, to the statutory scheme will illustrate that the theory of the appellee would result in a most confusing situation. If the appellee is correct in asserting that the 20-day time limitation period in section 23-135, R. R. S. 1943, overrides and controls the 45-day limitation period in section 77-1510, R. R. S. 1943, for the purpose of filing notice of appeal, then it would also follow that the time limitations in former section 27-1302, R. R. S. 1943 (.10 days from the date of decision for the undertaking to be
We believe that the Legislature did not intend for the 20-day time limitation period appearing in section 23-135, R. R. S. 1943, to have any effect upon the perfecting of appeals brought pursuant to section 77-1510, R. R. S. 1943. Our ultimate conclusion on the matter is that in order to perfect án appeal to the District Court from a decision of a county board of equalization, pursuant to section 77-1510, R. R. S. ,1943, all activities necessary to perfect such appeal,'including the filing of notice of appeal, are required to be carried out within 45 days of the adjournment of the board. Thus, there remains only to be determined whether in the case now before us, the áppeál to the District Court was perfected within the 45-day limitation period.
The District Court acquires jurisdiction by appeal from a decision of a county board of equalization, where the taxpayer gives notice of appéal, furnishes an appeal bond, and files in the office of the clerk of the District Court a transcript of the proceedings and order of the county board of equalization within the time allowed by law. Myers v. Hall County, 130 Neb. 13, 263 N. W. 486 (1935). As'we have already determined, “the time allowed by law” for such activities is 45 days from the day of the adjournment of the board. In the case now before us, the county board of equalization met, reached its decision, and adjourned all on November 8, 1972. Within 45 days of that date, on December 22, 1972, the appellant herein' furnished an appeal bond and filed a notice of appeal and a request that the transcript be
In reaching this conclusion we have not ignored the provisions of section 77-412, R. R. S. 1943, providing among other things that an appeal de novo may be taken from the decision, of the county board of equalization to the District Court of the county in which the assessment is made upon receipt of notice of action of the county board of equalization in the manner provided for by sections 77-1510 and 77-1511, R. R. S. 1943. Although the record does not disclose whether appellant received the notice of the action of the board of equalization on the same day it was dated, to wit, November 8,, 1972, it is clear that the conclusion we have reached would not be changed if the facts were that the notice was not received by it until some subsequent date for the reason that this would further.extend the time within which it would be entitled to perfect its appeal.
We have determined that the appellant was correct in asserting that it had 45 days in which to carry out all activities necessary to perfect its appeal to the District Court. Furthermore, it appears that the appellant did in fact perfect that appeal by carrying out all the necessary activities within the 45 days allowed. Under the circumstances, the judgment of the District Court must be reversed and the cause remanded.
Reversed and remanded.
Reference
- Full Case Name
- Knoefler Honey Farms, a partnership v. County of Sherman, State of Nebraska, Board of Equalization
- Cited By
- 1 case
- Status
- Published