Anderson v. Lehmkuhl
| Decision Date | 19 March 1930 |
| Docket Number | 26836 |
| Citation | 229 N.W. 773,119 Neb. 451 |
| Parties | JOHAN A. ANDERSON ET AL., APPELLANTS, v. FRANK LEHMKUHL, COUNTY CLERK, ET AL., APPELLEES. STATE, EX REL. FIRST FARMERS ELECTRIC DISTRICT, APPELLEE, v. FRANK LEHMKUHL, COUNTY CLERK, ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Saunders county: HARRY D. LANDIS JUDGE. Reversed, with directions.
REVERSED.
Syllabus by the Court.
A judgment of this court, entered after a rehearing seasonably requested and allowed, becomes a final judgment and entirely supersedes the former judgment, which is thereby suspended and vacated and is of no force or effect.
A curative act is one intended to give legal effect to some past act or transaction which is ineffective because of neglect to comply with some requirement of law. 12 C. J 1091.
Defects in legal proceedings which are mere irregularities may, in the absence of constitutional limitations, be corrected.
Retroactive statutes may legalize unauthorized acts which could have been authorized in the first place, but the Legislature has no power to legalize a defective proceeding based on a former act which has been held to be unconstitutional.
Courts appear to be divided upon the question as to the extent to which moral obligations may be recognized as arising out of unconstitutional enactments. This court holds that, since an unconstitutional law is void, it imposes no duty and confers no power nor authority upon any one, and no obligation is created which can be enforced by subsequent legislation.
" In all other cases where a general law can be made applicable, no special law shall be enacted." Const. art. 3, § 18.
Appeal from District Court, Saunders County; Landis, Judge.
Suit for injunction by Johan A. Anderson and others against Frank Lehmkuhl, as County Clerk of Saunders County, and others, and mandamus proceeding by the State, on the relation of the First Farmers' Electric District of Saunders County, against Frank Lehmkuhl, County Clerk of Saunders County, and others, in which Gust Swanson and others intervened, and which proceedings were consolidated. From adverse decrees, plaintiffs in the injunction suit and defendants and interveners in the mandamus proceeding appeal.
Reversed, with directions .
Peterson & Devoe, Charles H. Slama, Wymer Dressler, Joseph F. Berggren and C. F. Galloway, for appellants Anderson and others.
J. H. Barry and Rose, Wells, Martin & Lane, contra.
Heard before GOSS, C. J., DEAN, THOMPSON, EBERLY and DAY, JJ., and PAINE, District Judge.
Two suits were consolidated by the district court for Saunders county, and both were appealed to this court. In the first suit the district court denied an injunction against the defendants, which had been asked by the plaintiffs. The second suit comes here on appeal from an order of mandamus issued by the district court against the defendants. It is impossible to present the issues involved without giving a statement of the facts in the two cases and then a brief summary of the pleadings.
The First Farmers Electric District of Saunders county was organized under sections 7147-7154, Comp. St. 1922, for the purpose of building an electric line to distribute light and power to the farms within the electric district, and bonds of $ 30,000 were issued and sold to construct a transmission line of poles and wires within the district, which corporation proposed to buy electricity at wholesale from the municipal plant of the city of Wahoo at the rate of 6 cents per kilowatt, and in turn to sell this electric current to the users living in said district at retail at an increased price of from 9 cents to 14 cents per kilowatt. Said electric district consisted of about 21 sections of farm land running up to the city of Wahoo on all except the west side of said city, and in addition thereto the officers of the light district contracted to sell electric current to the village of Ithaca, which was two miles beyond the boundaries of said electric district, thereby contracting to furnish power and light to users who were residing outside of the electric district. Upon its construction said electric district began to do business and has since continued to function in spite of continuous litigation, and is now furnishing light and power to its customers. The directors of said electric district assessed and levied taxes against the real and personal property within such district and certified the same to the county clerk of Saunders county, Nebraska, and such levy was spread upon the tax rolls by order of the commissioners of said county against all of the property located within such light district.
Said sections 7147-7154, Comp. St. 1922, chapter 169, Laws of 1923, were brought before this court in the case of Elliot v. Wille, 112 Neb. 78, 198 N.W. 861, and an opinion entered, finding the sections as amended were constitutional, and that such distribution of light, heat and power as was contemplated was for a public use as distinguished from a private use, which opinion was filed April 30, 1924, but upon rehearing an opinion was entered October 20, 1924, and reported in 112 Neb. 86, in which the judgment of affirmance was vacated and the judgment of the district court was reversed, for the reason that upon reargument this court decided that, when a legislative act authorized private individuals to create and fix the boundaries of a district for public improvement to be paid for by taxes levied upon the property within the district, and without any provision for determination whether the owner's property had been arbitrarily or unjustly included within the district, this was invalid in that it authorized the taking of private property for a public use without just compensation. The court decided that by such a law the legislature attempted to delegate to private individuals legislative and judicial functions, and that such act violated both the state and federal Constitutions, and this court issued an injunction as prayed for by the plaintiff.
Thereafter an attempt was made by those interested to validate the action originally taken by securing the passage by the legislature of Senate File No. 106, found in chapter 89, Laws 1925, which law, although couched in general terms, applied specifically to the local conditions of the First Farmers Electric District of Saunders county, as it attempted to validate proceedings had prior to the passage of the law. Section 3, ch. 89, is as follows:
"The provisions of the two preceding sections shall be considered cumulative and supplementary to article VII, chapter 67, Compiled Statutes of Nebraska for 1922."
Under this law the officers of the First Farmers Electric District of Saunders county endeavored to make valid and legal all of the steps which had been taken under the sections which had been declared unconstitutional by this court in the case of Elliot v. Wille, 112 Neb. 86, 200 N.W. 347. A suit was immediately brought in the district court for Saunders county to enjoin the validation of the purported bonds and contracts of said electric district. This injunction was denied by the district court for Saunders county and appeal taken to this court. The issues were determined in the case of Swanson v. Dolezal, 114 Neb. 540, 208 N.W. 639, in which it was held that chapter 89, Laws 1925, attempted to cure the defect in the original provisions, and that the act was not a complete act within itself but was dependent upon the provisions of the former act which had been declared void. The effect of this decision was to wipe out all legislation in reference to this particular electric district, for it was enjoined from assessing or levying any taxes against the real or personal property within the boundaries of the district.
Those interested in establishing this First Farmers Electric District again sought relief from the legislature, and Senate File No. 68 was passed by the next legislature and became chapter 106, Laws 1927. This law to establish light and power districts in terms that would apply to the conditions in which the First Farmers Electric District found itself is carefully drawn and clearly shows the attempt of the one drafting the same to avoid the defects in the two former acts of the legislature as well as to come within the law as stated by this court in its two former decisions. The title of said Senate File No. 68 reads as follows:
"An act relating to and defining the powers of heat, light and power districts where ineffective proceedings for their formation have heretofore been had; to validate and cure the ineffective proceedings heretofore had for their formation, their contracts and obligations, and their bonds heretofore issued and sold; and to declare an emergency."
The appellees urge vigorously that this act was complete in itself and not dependent in any way upon any prior act admitting, however, that it assumed the existence of certain physical facts which did exist and gave a method by which the physical property of the former district, the name of which was not to be changed, might be acquired and the bonds issued several years before be ratified, confirmed and paid. Appellees base their procedure upon a statement, which was dictum, used by this court in Swanson v. Dolezal, supra, reading as follows: "We do not determine that a curative act may not afford relief desired in this case." With the emergency clause, this law, found in chapter 106, Laws 1927, was approved April 16, 1927, and the said electric district endeavored to proceed to validate the $ 30,000 worth of bonds and to assess and levy taxes to pay the interest thereon, and upon March 6, 1928, the plaintiffs filed their amended petition in ...
To continue reading
Request your trial
-
Neb. Const. art. III § III-18 Local Or Special Laws Prohibited
...to validate proceedings to form light and power districts was invalid as special legislation. Anderson v. Lehmkuhl, 119 Neb. 451, 229 N.W. 773 Law regulating public dances on Sunday, but excepting metropolitan cities from its operation, was invalid special legislation. Galloway v. Wolfe, 11......