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Banks v. Heineman

Supreme Court of Nebraska

August 2, 2013

Steven Banks et al., each and all as individuals, property owners, taxpayers, and as supervisors serving districts 1 through 7, all of the County of Knox, and County of Knox,
v.
Dave Heineman, Governor, et al., appellants and cross-appellees. State of Nebraska, appellees and cross-appellants v.

1. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitutional is a question of law; accordingly, the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision reached by the court below.

2. Constitutional Law: Statutes: Presumptions. A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality.

3. Taxation: Words and Phrases. An excise tax is a tax imposed on the manufacture, sale, or use of goods or on an occupation or activity, and is measured by the extent to which a privilege is exercised by the taxpayer, without regard to the nature or value of the taxpayer's assets.

4. Taxation. An excise tax is imposed upon the performance of an act.

5. __. An excise tax includes taxes sometimes designated by statute or referred to as "privilege taxes, " "license taxes, " "occupation taxes, " and "business taxes."

6. Taxation: Property: Valuation. A property tax is levied on real or personal property, with the amount of the tax usually dependent upon the value of the property.

7. Constitutional Law: Intent. Constitutional provisions are not open to construction as a matter of course; construction is appropriate only when it has been demonstrated that the meaning of the provision is not clear and that construction is necessary.

[286 Neb. 391] 8. Constitutional Law. It is a fundamental principle of constitutional interpretation that each and every clause within a constitution has been inserted for a useful purpose.

9. Constitutional Law: Courts: Intent In ascertaining the intent of a constitutional provision from its language, a court may not supply any supposed omission, or add words to or take words from the provision as framed.

10. Constitutional Law. The Nebraska Constitution, as amended, must be read as a whole.

11. Constitutional Law: Taxation. The constitutional prohibition against commutation of taxes set forth in Neb. Const, art. VIII, § 4, does not apply to an excise tax.

12. Constitutional Law: Statutes: Special Legislation. The focus of the prohibition against special legislation is the prevention of legislation which arbitrarily benefits or grants special favors to a specific class. A legislative act constitutes special legislation if it either (1) creates an arbitrary and unreasonable method of classification or (2) creates a permanently closed class.

13. Special Legislation: Words and Phrases. A closed class is one that limits the application of the law to a present condition, and leaves no room or opportunity for an increase in the numbers of the class by future growth or development.

14. Special Legislation. The Legislature has the power to enact special legislation where the subject or matters sought to be remedied could not be properly remedied by a general law and where the Legislature has a reasonable basis for the enactment of the law.

Appeal from the District Court for Lancaster County: Paul D. Merritt, Jr., Judge.

Jon Bruning, Attorney General, and L. Jay Bartel for appellants.

David A. Domina, of Domina Law Group, P.C., L.L.O., and John Thomas, Knox County Attorney, for appellees.

Heavican, C.J., Connolly, Stephan, Miller-Lerman, and Cassel, JJ., and Inbody, Chief Judge.

Stephan, J.

Effective July 15, 2010, the Nebraska Legislature changed the manner in which wind energy generation facilities in Nebraska are taxed. The change exempted personal property used by such facilities from the personal property tax and imposed a new tax based on a facility's nameplate capacity. The legislation allowed taxpayers who had paid personal [286 Neb. 392] property tax prior to 2010 to claim a credit against nameplate capacity taxes assessed for 2010 and subsequent years. The appellees, who are taxpayers and residents of Knox County Nebraska, brought this action challenging the constitutionality of the ...


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