75 N.W.2d 713 (Neb. 1956), 33971, Kelley v. John

Docket Nº:33971.
Citation:75 N.W.2d 713, 162 Neb. 319
Opinion Judge:CARTER, J.
Party Name:Donald E. KELLEY, Georgia E. Kelley, Safeway Stores, Incorporated, et al., Appellants, v. Arthur JOHN, as Mayor of the City of McCook, Nebraska, et al., Appellees, J. Harold Donaldson, Jr., M. D., et al., Interveners-Appellees.
Attorney:Morrison, Lyons & Starrett and Kennedy, Holland, DeLacy & Svoboda, for appellants. Stanley R. Scott, for appellees. Russell & Colfer and J. D. Wood, Jr., for interveners-appellees.
Case Date:March 24, 1956
Court:Supreme Court of Nebraska

Page 713

75 N.W.2d 713 (Neb. 1956)

162 Neb. 319

Donald E. KELLEY, Georgia E. Kelley, Safeway Stores, Incorporated, et al., Appellants,


Arthur JOHN, as Mayor of the City of McCook, Nebraska, et al., Appellees,

J. Harold Donaldson, Jr., M. D., et al., Interveners-Appellees.

No. 33971.

Supreme Court of Nebraska.

March 24, 1956

Page 714

Syllabus by the Court.

1. The referendum provisions of our statutes as they relate to municipal corporations apply to legislative acts, but not to administrative or executive matters.

2. If an ordinance of a city serves merely to put into execution a previously enacted law, it is clearly executive or administrative in character.

3. The test for determining that which is legislative from that which is administrative or executive is whether the ordinance was one making a law, or administering or executing a law already in existence.

4. An ordinance changing the classification of property from residential to business use after the adoption of a comprehensive zoning plan is an administrative or executive matter, and not subject to referendum laws applicable to municipalities.

Morrison, Lyons & Starrett, McCook, Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellants.

Stanley R. Scott, McCook, for appellees.

[162 Neb. 320] Russell & Colfer, J. D. Wood, Jr., McCook, for interveners-appellees.


CARTER, Justice.

This is an appeal by plaintiffs from an order and judgment of the district court for Red Willow County, sustaining defendants' demurrer to plaintiffs' petition and dismissing the action.

The plaintiffs, Donald E. Kelley and Georgia E. Kelley, are the owners of Lots 10 through 19, Block 3, Kelley's Hilltop Addition to the City of McCook, Nebraska. The plaintiff, F. E. Dillman, is the representative of the Berean Fundamental Church Council, Inc., a religious organization which owns Lot 9 in Block 3, the remainder of the property involved in this suit. The plaintiff, Safeway Stores, Incorporated, is the holder of an option agreement to purchase all of the described property, which option has been exercised conditional upon the rezoning of the property for business use. The plaintiffs, Solomon W. Stilgebouer and John Lenhart, are citizens, residents, voters, and taxpayers in the city of McCook.

The defendant, City of McCook, a municipal corporation, is a city of the first class operating under the city manager plan. The other defendants are the mayor, city clerk, city treasurer, and the members of the city council of the city of McCook.

On November 27, 1952, the city of McCook established by ordinance a comprehensive zoning plan regulating and restricting the construction and use of buildings within zoning districts, and creating a board of adjustment and fixing its powers and time and place of meeting. Under this ordinance, the validity of which is not questioned, the property here involved was zoned as residential property.

On May 31, 1955, certain owners of property adjoining[162 Neb. 321] Block 3 petitioned the city council to rezone the use of the property

Page 715

from residential to business use. Other parties joined in the proceedings. Notice was given of a public hearing on the matter, as required by the original zoning ordinance. After a hearing, the city council adopted Ordinance No. 795 rezoning Block 3 as 'Neighborhood Business District Zone 4-A.' Such classification permits the operation of retail stores within the prescribed zone. No appeal was taken to the board of adjustment or to the courts in the manner authorized by statute. Instead, petitions were filed, containing a sufficient number of signers, to obtain a referendum on Ordinance No. 795. The city council found the petitions sufficient and designated December 7, 1955, as a special election day for the referendum. This suit was then commenced, praying that the defendants be enjoined from calling or holding the referendum election. Due to the pendency of the present suit the election was not held on December 7, 1955. Such referendum election is now called for the general municipal election to be held on April 3, 1956.

The applicable portion of the controlling referendum statute provides as follows: 'The referendum may be ordered upon any ordinance or measure except ordinances making the annual tax levy, appropriating money to pay the salaries of officers and employees, or...

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