Tyson v. Washington County

Decision Date17 January 1907
Docket Number14,600
PartiesWATSON TYSON ET AL., APPELLANTS, v. WASHINGTON COUNTY ET AL., APPELLEES
CourtNebraska Supreme Court

APPEAL from the district court for Washington county: WILLIS G SEARS, JUDGE. Affirmed.

AFFIRMED.

W. C Walton and Frank Dolezal, for appellants.

E. B Carrigan, John C. Wharton and Herman Aye, contra.

AMES, C. OLDHAM and EPPERSON, CC., concur.

OPINION

AMES, C.

Certain citizens of Washington county filed a petition with the county board, praying for the construction of a drainage ditch under the provisions of article I, ch. 89, Comp. St. Appellants filed a remonstrance or objection to the proposed drain on the grounds: First, the ditch will not be conducive to the public health, convenience or welfare; second, the route is not practicable; and, third, sufficient outlet is not provided for the ditch. The board overruled the remonstrance, and entered an order of record to the effect that the proposed improvement will be conducive to the public health, convenience and welfare; that the proposed route is practicable; and that sufficient outlet is provided. Remonstrants filed a notice of appeal, gave bond, and brought the case before the district court. Appellees filed a motion to dismiss the appeal, because said order of the county board is not judicial, is final, and is not appealable. The district court sustained the motion and dismissed the appeal. Appellants present for our determination the sole question of whether an appeal lies from such final order and decision of the county board.

Sections 15 and 16 of article I of the statute above cited are as follows:

Section 15. "Any person or corporation feeling aggrieved thereby may appeal to the district court within and for the proper county from any final order or judgment of the commissioners made in the proceedings and entered upon their journal determining either of the following matters, to wit: First, Whether said ditch will be conducive to the public health, convenience, or welfare. Second. Whether the route thereof is practicable. Third. The compensation for land appropriated. Fourth. The damage claimed to property affected by the improvement, which appeal may be taken and prosecuted in the manner provided by law for appeals from the decision of the county board on claims against the county."

Section 16. "No appeal taken in pursuance of the provisions of section fifteen shall in any manner affect the progress of the construction of the proposed improvement; provided, the petitioners shall enter into a good and sufficient bond to be approved by the said district court as (or) by the judge thereof at chambers, and filed with the clerk of said court, conditioned for the payment of all damages and costs that the appellant may sustain on the trial of said appeal."

Just what the legislature intended should be accomplished by such a proceeding, with reference to the first two numbered subdivisions of section 15, it is difficult, if not impossible, to say; for, manifestly, during the pendency of the appeal the county board, in the exercise of the authority expressly granted to them, or rather in the performance of the duty expressly imposed upon them by section 16, might, and probably would, proceed with and complete the construction of the proposed ditch, so that, before a judicial determination could be reached, all the remaining provisions of the statute would have been complied with, the necessary public expenditures incurred, and the contemplated public work irrevocably established. In such a case no function would be left to the courts, in these regards, except an impotent expression of approval or disapproval of the official conduct of a local board, concerning which the judges could have, at the best, but very limited and imperfect information. It does not appear to us that the legislature can require of the courts the performance of a so futile, not to say ridiculous, task. We conjecture that the remarkable provisions of these two sections are due to the fact that the draughtsman of the statute had in mind the impracticability, if not impossibility, of requiring of the courts the making of investigations and determinations which are in their nature as far as possible from the exercise of judicial functions, and of withdrawing the exercise of local political and administrative matters to the final decision of distant and illy qualified tribunals. Such a system would savor more of centralization and bureaucracy that a democratic local self-government, and would be much more easily adaptable to a Russian autocracy than to a free American commonwealth.

Article II of the constitution of this state is as follows: "The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted." In recent years the courts of sister states have been particularly zealous in giving effect to the foregoing principle, whether the same has been explicitly stated in the constitutions of their states or not. Thus in the Connecticut constitution there is no such express provision, but in Norwalk Street R Co.'s Appeal, 69 Conn. 576, 39 L. R. A. 794, the court held that the principle "is fundamental to the very existence of constitutional government as established in the United States." The precise proposition involved in that case arose in this way: A corporation that had been created, known as the Norwalk Street Railway Company, had applied, pursuant to a statute of the state, to the mayor and council of the city for an approval of its route and plans of construction in and over certain of the streets of the city, and for permission to construct and maintain its proposed road, and had met with refusal. Pursuant to another statute, assuming to confer express authority for such a proceeding, the company appealed to the circuit court for the county, which entertained the appeal, and accepted and adopted the proposed plan, and entered an order assuming to authorize the construction of the road. The mayor and council appealed to the supreme court of errors, which reversed the decision and dismissed the proceeding. The nature of the proposition of law involved is stated by the court in the beginning of the opinion, as follows: "The act of 1893 confers upon city councils certain powers in establishing regulations for the location, construction and operation of street railways; and requires a council, if requested by a railway company, to take some action within sixty days, and to notify the company in writing of its action. Whenever a council fails to give such written notice, the act of 1895 confers the same powers upon the 'superior court or any judge thereof,' to be exercised on application of a railway company, and calls this application an 'appeal.' The power so conferred on the court is described in the act of 1893 as the power to approve and adopt a location and layout of a street railway, with such modifications therein as shall seem proper, in respect to the streets to be occupied, the location of the same as to grade and to the center line of the streets, and changes to be made in the street, the kind and quality of the track to be used, the motive power to be used, and the method of applying the same. Can such powers be conferred on the superior court? The limitation of their exercise to cases where there has been a prior failure of the municipal board to act, cannot affect the principle involved. If the legislature can confer the power in a limited class of cases, by calling an original application for its exercise an 'appeal,' it can confer the power in all cases without limitation." The opinion is long and elaborate, citing a large number of authorities, and discussing at length the principles of constitutional law involved, and arrives at the conclusion expressed in the syllabus as follows: "The incapacity of the legislature to execute a power which is essentially and merely a judicial power, and of the judiciary to execute a power which is essentially and merely a legislative power, as well as the limitation of the meaning of legislative power by force of certain primary principles of government fairly embodied in the constitution, and by the necessities involved in the separation and independence of distinct departments of government, is fundamental to the very existence of constitutional...

To continue reading

Request your trial
12 provisions
  • § II-1. Legislative, Executive, Judicial
    • United States
    • Constitution of the State of Nebraska 2010 Edition Article II
    • January 1, 2010
    ...with legislative functions under subterfuge of giving court jurisdiction over such questions on appeal. Tyson v. Washington County, 78 Neb. 211, 110 N.W. 634 Creation of State Banking Board with regulatory power over banking corporations does not vest such board with judicial powers in viol......
  • Neb. Const. art. II § II-1 Legislative, Executive, Judicial
    • United States
    • Constitution of the State of Nebraska 2018 Edition Article II
    • January 1, 2018
    ...with legislative functions under subterfuge of giving court jurisdiction over such questions on appeal. Tyson v. Washington County, 78 Neb. 211, 110 N.W. 634 Creation of State Banking Board with regulatory power over banking corporations does not vest such board with judicial powers in viol......
  • Neb. Const. art. II § II-1 Legislative, Executive, Judicial
    • United States
    • Constitution of the State of Nebraska 2016 Edition Article II
    • January 1, 2016
    ...with legislative functions under subterfuge of giving court jurisdiction over such questions on appeal. Tyson v. Washington County, 78 Neb. 211, 110 N.W. 634 Creation of State Banking Board with regulatory power over banking corporations does not vest such board with judicial powers in viol......
  • Neb. Const. art. II § II-1 Legislative, Executive, Judicial
    • United States
    • Constitution of the State of Nebraska 2021 Edition Article II
    • January 1, 2021
    ...with legislative functions under subterfuge of giving court jurisdiction over such questions on appeal. Tyson v. Washington County, 78 Neb. 211, 110 N.W. 634 Creation of State Banking Board with regulatory power over banking corporations does not vest such board with judicial powers in viol......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT