Lickert v. City of Omaha

• Decision Date: 07 January 1944
• Docket Number: 31606.
• Citation: 12 N.W.2d 644,144 Neb. 75
• Parties: LICKERT et al. v. CITY OF OMAHA et al.
• Court: Nebraska Supreme Court

12 N.W.2d 644

144 Neb. 75

LICKERT et al. v. CITY OF OMAHA et al.

No. 31606.

Supreme Court of Nebraska

January 7, 1944

Syllabus by the Court.

1. It is a rule of universal application in appellate proceedings that the examination of the reviewing court whether on appeal or writ of error, will be confined to the questions determined by the trial court.

2. The above rule applies to appeals under the declaratory judgment act.

3. The existence of legislation making pension and retirement provisions for members of a police department and the acceptance or retention of employment as a member of a police department does not establish a contract, between the member and the city, that such members will thereafter be granted the retirement and pension benefits provided in such legislation.

4. The right of the legislative body to amend the pension law is not affected by the fact that a given sum was required by law to be, and was deducted each month from the police officer's pay by the disbursing officer and paid into a pension fund; such a provision in legal effect says that the officer shall receive each month the net amount payable to him.

5. Until the particular event happens upon which the pension is to be paid there is no vested right in the police officer to such payments.

6. The legislative change amending the pension provisions previous to the happening of one or more of the conditions mentioned in the act, impairs no absolute right of property in the police officer.

PAINE, J dissenting.

Harold C. Linahan, W. W. Wenstrand, G. H. Seig, and Edward Sklenicka, all of Omaha, for appellants.

Thomas J. Sheehan, Jr., of Omaha, for appellees.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

SIMMONS Chief Justice.

In this action the plaintiffs, as members of the police force of the city of Omaha, sought a declaratory judgment declaring their rights, duties and liabilities under the pension provisions of the Omaha city charter, a declaration that a charter amendment was unconstitutional and void and for other relief. The trial court entered a judgment declaring the status of plaintiffs under the charter provisions. From that judgment the defendants appealed. We reverse the judgment of the trial court.

In 1921 the Legislature adopted "An Act to incorporate Metropolitan cities, and pertaining to the government, powers and duties of such cities" and to repeal certain provisions of existing law. This act contained Article V, entitled "Police Department." See Laws, 1919-1921, p. 496 and following. This act is now found in Comp.St.1929, sections 14-601 to 14-619, inclusive, being chapter 14, article 6.

In 1922, the city of Omaha, being a metropolitan city, adopted the provisions of said article as a part of its home rule charter under the provisions of article XI, section 5 of the Constitution of the state of Nebraska.

Subsequently in 1940, the city of Omaha proposed to amend its home rule charter in, among others, the provisions of part of said chapter 14, article 6. The district court of Douglas county enjoined the placing of the proposal upon the ballot at the election to be held on November 5, 1940. On appeal this court dissolved the injunction and dismissed the petition upon which it was issued. Munch v. Tusa, 140 Neb. 457, 300 N.W. 385, 386. In that opinion we held: "The police relief and pension fund, set forth in article 6, ch. 14, Comp.St.1929, may be amended by a proposed ordinance adopted by the city council and submitted to the electors, where the proposed ordinance affects merely the form of the relief and pension law and does not destroy the purpose for which such fund was created."

Further, in Munch v. Tusa, supra, we considered the proposition that provisions for pensions of policemen and firemen in the Omaha city charter could not be amended by the city in the manner contemplated, and this, on the contention that to do so, would make the charter provisions in conflict with the state law on the matter; in other words that the amendment "should give way to state legislation on the subject." For reasons stated in the opinion we held when the city adopted its 1922 charter that "as to the city of Omaha", the legislative act of 1921 (which includes chapter 14, article 6, supra) "lost its qualities as a statutory charter or law imposed by the sovereign power of the state, and in lieu thereof, by virtue of an explicit constitutional grant, its terms then existing became a home rule charter created and to be thereafter continued in force at the will of the grantee municipality lawfully expressed, every section of which was expressly made subject to its own lawful amendments. No other legislative charter, as such, was thereafter applicable to Omaha than the law thus adopted." We further held "Outside of the provisions contained in the Omaha charter, there is no statutory provision whatever relating to the subject-matter of the proposed amendment, the adoption of which is enjoined in this proceeding." "And furthermore, the sovereignty of the state having refrained from directly expressing its will by applicable statute on the subject here involved in this litigation, we may not, until such expression actually occurs, consider the matter of firemen's relief and pensions defined and regulated by the Omaha charter as 'a matter of exclusively state concern."'

Thereafter the city, by ordinance, passed on March 3, 1942, submitted the amendments at an election held on May 12, 1942. The amendments were passed and became a part of the city charter effective on June 30, 1942 at midnight. So far as it affects the police department the changes effected by the amendment are set out in the discussion in Munch v. Tusa, supra, and will not be restated here, except in so far as it may be necessary to discuss the questions presented.

The provisions of the charter as originally adopted provided, in effect, that when any member had served twenty years or more in the police department and was fifty years or over of age, he had the "absolute right" on application to retire and be allowed a pension equal to half his salary at the time of retirement. The charter, as amended, changed the period of service to 25 years or over and the age to 55 years or over and reduced the pension to be allowed.

The plaintiffs, as members of the police department of the city of Omaha, brought this as a representative action seeking a declaratory judgment to determine their rights, duties, and liabilities.

It was alleged that plaintiff Lickert had served for over 22 years but was 46 years of age and hence ineligible for retirement and pension; that plaintiff Berger was 50 years of age but had served 19 years and was likewise ineligible; that plaintiff Shoe-high was 49 years of age and had served 19 years and was likewise ineligible.

Plaintiffs alleged the capacities of the various defendants, the passage of said chapter 14, article 6; its provisions including the deduction, by the city comptroller, of one dollar per month from their pay to be, by the comptroller, paid into the police relief and pension fund; and the provisions herein before recited as to the age and length of service necessary as a basis for retirement.

Plaintiffs further alleged that they entered the service in the police department of the city with the agreement that the pensions provided by the statutes above cited were a part of the compensation for their services; that they permitted the city to withhold the one dollar monthly to assist in the creation of the pension fund; that thereby there was created a contract between the plaintiff and defendant city; that plaintiffs have performed their part of the contract and desire to continue to perform; that the city is obligated to perform the contract under the terms of the law as it existed when they entered the service; that they have rights and interests in the pension fund which may not be denied or disturbed so long as plaintiffs comply with the contract and the law as it existed when the alleged contract was made.

Plaintiffs further alleged the approval of the amending ordinance by the vote of the electorate and set out an analysis of it's terms. They alleged that the adoption of the amendments was an attempt to cancel their contract and they have thereby been deprived of their property rights.

They further alleged that the proposal to amend as adopted was unconstitutional as violative of four separate sections of our state Constitution and of two separate sections of the Constitution of the United States. They further allege that chapter 14, article 6, supra, is a part of the general laws of the state of Nebraska, of state wide concern and not subject to repeal or amendment by the city of Omaha or its electors.

Finally it is alleged that a controversy exists between the plaintiffs and defendants with respect to the validity of said amendment and that the defendants threaten to enforce its provisions.

Plaintiffs pray for a declaration of the rights, duties and liabilities of the parties, a determination that the proposed amendment is unconstitutional and void and for other relief.

Defendants answering denied generally, alleged that the defendant city was one of the metropolitan class operating under a home rule charter adopted in 1922 pursuant to section 5, article XI of the Constitution; alleged the proceedings by which the amendment in question was adopted and that it went into effect at midnight, June 30, 1942; and that the pension program existing prior to the amendment was actuarily unsound and discriminating and the pension fund being rapidly depleted. Defendants prayed for a dismissal of plaintiffs' petition and other relief.

At the trial, plaintiffs...