Opinion
No. 42280.
Filed May 8, 1979.
1. Administrative Law: Taxation: Property. The power to equalize property valuations between counties is vested in the state board of Equalization and Assessment. The sole method of review in this court is by appeal. 2. Administrative Law: Taxation: Statutes. The right of an individual to appeal an order of the State Board of Equalization and Assessment is restricted to one who has demonstrated to the state Board that he is a "person affected" by the order. Only a taxpayer is a "person affected." 77-510, R.R.S. 1943. 3. Administrative Law: Taxation: Appeal and Error. Where appeal is the sole method of review, failure to allege essential elements of standing to the State Board of Equalization and Assessment may not be corrected by affidavit in this court. 4. Administrative Law: Taxation: Notice: Time. Public hearings, and notice thereof, are a prerequisite to an order changing valuations by the State Board of Equalization and Assessment. While an appearance might properly be made in some manner other than personal appearance, it must be made within the time limits legally set by the State Board.
Appeal from the State Board of Equalization and Assessment. Appeal dismissed.
John W. DeCamp, pro se.
Paul L. Douglas, Attorney General, and Patrick T. O'Brien, for appellee.
Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
This is an appeal from a final order of the state Board of Equalization and Assessment (hereinafter "State Board") with regard to the equalization between counties of the valuation of real and personal property for the year 1978. The State Board issued an order on July 26, 1978, for various counties to show cause why the valuations of real property, railroad terminal property, and improvements on leased land reported on their 1978 abstracts of assessment should not be increased or decreased by a percentage, for purposes of intercounty equalization. Hearings were held after notice by the state Board on August 1, 2, and 3, 1978, for the purpose of taking evidence in regard to the July 26, 1978, order.
On August 7, 1978, the State Board entered an order raising or lowering the valuations in certain counties and leaving the remaining counties unchanged. On August 10, 1978, the appellant, pursuant to section 77-510, R.R.S. 1943, filed notice with the State Board of his intention to appeal the order of the State Board, and thereafter perfected this appeal.
We are faced initially with a determination of whether the appellant has standing in this court. The State asserts that he does not. Appellant, a member of the Nebraska Legislature, did not personally appear at the State Board hearings; however, he alleges by affidavit in this court that he is the owner of taxable real and personal property in several Nebraska counties and that he did appear before the State Board, "such appearance being in the form of a letter addressed to said State Board dated August 4, 1978."
Section 77-510, R.R.S. 1943, provides in part: "From any final decision of the State Board of Equalization and Assessment with respect to the valuation of any real or personal property, any person, county or municipality affected thereby may prosecute an appeal to the Supreme Court." We have held that a taxpayer in a county where property was not valued in accordance with the law was a "person affected" within the meaning of the statute. In making that determination, this court held: "It was evidently the intention of the Legislature to afford relief to any person, county, or municipality by a direct appeal from a final order of the Board which denied relief to one who had made a showing requiring the affirmative action of the Board." (Emphasis supplied.) Laflin v. State Board of Equalization and Assessment, 156 Neb. 427, 56 N.W.2d 469.
The State points to the language in Laflin, emphasized above, and the fact that the appellant there appeared personally as a critical difference between that case and the present one. Appellant contends that his letter of August 4, 1978, was sufficient to satisfy any appearance requirement. For whatever reason, the letter does not appear in the record of the proceedings of the State Board.
The State refers to the letter "purportedly sent" by the appellant and argues in its brief that: "There is no showing the letter was ever received by the Board of Equalization of the State of Nebraska nor in fact that it was not received after the order was entered." However, the State has at no time actually denied that it received the letter. Since the fact of receipt of the letter is peculiarly within the knowledge of the State Board, we deem it appropriate to construe the failure to deny as an admission of receipt. Put quite simply, the contention of the State that the appellant's letter is not in the record is no answer to his argument that it should be in the record.
It is not clear whether the State argues that any showing required by the statute and the Laflin case could never be made except by personal appearance at the hearing. To the extent that argument is made, it is rejected, for written statements are widely recognized in Nebraska in both judicial and legislative hearings as an appropriate substitute, under certain circumstances, for oral testimony. Indeed, the bill of exceptions prepared by the Secretary of the State Board in this case contains the telegrams sent by two counties unable to attend the hearings.
It is the rule of Laflin that there is a right of appeal from such issues as were properly brought before the State Board. Granting, for the reasons set out above, that the appellant could raise those issues by letter rather than personal appearance and that the letter was in fact received by the Board, we are faced with the question of whether that letter did in fact properly raise issues entitling him to relief here. For two reasons, we think that it did not.
First, the letter was dated, and presumably sent, August 4, 1978. That is too late. The hearings on the proposed order were held on August 1, 2, and 3, 1978, following full notice to the counties. All testimony, whether oral or written, should have been presented at the time of the hearings.
Second, the letter of the appellant fell far short of a "showing requiring the affirmative action of the Board." It referred only to the valuation of personal property and made no mention of the many issues, now raised in appellant's brief, relating to intercounty equalization of real property. But even as to personal property, the letter was not one of a "person affected" by the State Board's action. The letter did not reveal to the Board, as did the testimony of the appellant in Laflin, that the appellant was the owner of property, either real or personal, nor was it written in a tone mandating an inference that the appellant desired it to be considered in that light. It appeared under the letterhead of the appellant's official legislative stationery. It cited case law and merely expressed the appellant's legal opinion that: "A final determination of your tentative proposal to equalize property assessment without further taking into consideration other properties of the same class will be considered a failure to act upon a clear and specific legal duty." A statement of legal opinion does not constitute a "showing requiring the affirmative action of the board" nor does eventual disagreement by the Board with that opinion make the appellant a party "affected" by the order. It is required that the party seeking relief be an aggrieved property owner. Our refusal to allow on appeal the addition of these critical matters by affidavit is not a mere technicality.
The power to equalize valuations is vested in the State Board. Art. IV, 28, Constitution of Nebraska; 77-501, R.R.S. 1943. Its actions are subject to review in this court, but only by appeal. 77-510, R.R.S. 1943. Where the interest of the appellant was not presented to the State Board, the action in this court is more akin to one for declaratory judgment than an appeal. We are without power to "review," in this court, matters relating to equalization which have not already been presented to the State Board. Having failed to make a showing before the State Board requiring its affirmative action, the appellant lacks standing in this court. The appeal is therefore dismissed.
APPEAL DISMISSED.