Application of City of Sidney

• Decision Date: 03 December 1943
• Docket Number: 31684.
• Citation: 12 N.W.2d 104,144 Neb. 6
• Parties: Application of CITY OF SIDNEY et al. CONSUMERS PUBLIC POWER DIST. v. CITY OF SIDNEY POWER DIST.
• Court: Nebraska Supreme Court

12 N.W.2d 104

144 Neb. 6

Application of CITY OF SIDNEY et al.

CONSUMERS PUBLIC POWER DIST. v. CITY OF SIDNEY POWER DIST.

No. 31684.

Supreme Court of Nebraska

December 3, 1943

Syllabus by the Court.

1. The appointment of the members of a court of condemnation by the supreme court under the provisions of section 19-702 Comp.St.1929, is a ministerial act and as such it in no way enlarges the jurisdiction of the supreme court.

2. The statutory power of the supreme court to appoint the members of a court of condemnation does not have the effect of lodging the condemnation proceeding in the supreme court.

3. A proceeding in the supreme court to vacate the appointment of the members of a court of condemnation because of irregularities in the condemnation proceeding is not within the original or appellate jurisdiction of the supreme court nor is it incidental to any pending judicial proceeding which could have the effect of bringing it within the jurisdiction of the supreme court.

4. When the appointment of a court of condemnation by the supreme court appears to be in accordance with the applicable statute, a petition to vacate the appointment because of irregularities in the condemnation proceedings will not be entertained.

Harold C. Linahan, W. W. Wenstrand, G. H. Seig, Edward Sklenicka and Louis T. Carnazzo, all of Omaha, H. A. Prince, of Grand Island, James C. Kinsler, of Omaha, H. L. Blackledge and Kenneth H. Dryden, both of Kearney, and Max Kier and A. A. Whitworth, both of Lincoln, amici curiae.

Clarence A. Davis and William W. Redmond, both of Lincoln, for petitioner.

P. J. Heaton, of Sidney, and L. J. TePoel, of Omaha, for respondent.

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

CARTER Justice.

The petitioner Consumers Public Power District, prays for an order vacating the appointment of the court of condemnation appointed by this court to appraise the value of the electric light and power system of the petitioner in and near the city of Sidney, Nebraska, pursuant to the provisions of sections 19-701 to 19-707, Comp.St.1929.

The record shows that there was filed in this court on March 12, 1942, a certificate as required by section 19-702, Comp.St.1929, and a request for the appointment of three district judges to constitute a court of condemnation for the ascertainment of the value of the electric light and power system of the petitioner at Sidney. On April 4, 1942, this court entered its order appointing three district judges as a court of condemnation pursuant to the provisions of the aforesaid statute.

Petitioner prays for the vacation of the order of appointment for the following reasons: First, the ordinance of the city and the election held pursuant thereto are void in their entirety in that the proceedings are directed against the property of the Western Public Service Company when the condemnor well knew that said property had been sold and transferred to the Consumers Public Power District prior to the submission of the pertinent question to the electors of the city of Sidney. Second, that the title to said property was in dispute and undeterminable, and the method of taking and the nature of the property permitted to be taken being dependent upon the character of the ownership, a determination of ownership is a condition precedent to a valid condemnation. Third, that the ordinance enacted and the notice of election and ballot by which the proposition was submitted at the election are insufficient in form and substance in that they are ambiguous and uncertain, and wholly fail to show the specific part of petitioner's property sought to be condemned.

The city of Sidney in its answer contends that the supreme court does not have jurisdiction of the present proceeding in that it is not appellate in character or one of the actions listed in the Constitution as being within the original jurisdiction of that court. It is also contended that the proceeding before us is not incidental to the appointment of the members of the court of condemnation as provided by the applicable statute. The city denies any insufficiency of the city ordinance and ballot submitted to the electors of the city and prays for the dissolution of the injunction granted. It is upon these issues that the decision must turn.

The record in the proceeding before us shows that an ordinance was passed in an election held upon the question whether the city of Sidney should acquire by eminent domain proceedings the entire electric light, steam and power plants, including both generating and distribution systems of the Western Public Service Company located and operated partly within and partly without the city of Sidney, all of which purports to be specifically described in the ordinance enacted and the ballot used. The record further shows that the electors voted in the affirmative by the required majority to carry the proposition submitted. These facts were communicated to the supreme court in the form of a certificate, regular on its face, together with a request for the appointment of three district judges to constitute a court of condemnation in accordance with section 19-702, Comp.St.1929. In considering the powers of the supreme court with relation to an application to vacate the order appointing the members of the court of condemnation, the nature of the authority exercised in making the appointment in the first instance becomes of primary importance.

The power of the supreme court to appoint the members of the court of condemnation arises by virtue of section 19-702, Comp.St.1929, which provides in part as follows: "The city council or officer possessing the power and duty to ascertain and declare the result of such election shall certify such result immediately to the supreme court of the state and the supreme court shall within thirty days after the receipt of such certificate, appoint three district judges from three of the judicial districts of the state, and said three judges shall constitute a court of condemnation for the ascertainment, and finding of the value of any such plant, works, or system ***."

It will be noted that the appointment of the members of the court of condemnation is required by the statute upon the filing of a certificate indicating an affirmative vote on the condemnation proposal. It does not arise incidentally to any case pending in the supreme court, either on appeal or by original action. We have heretofore held that the proceedings of the court of condemnation are judicial in their nature, although it is not a court in the constitutional sense. Updike v. City of Omaha, 102 Neb. 782 169 N.W. 725. In State v. Neble, 82 Neb. 267, 117 N.W. 723, 724, 19 L.R.A., N.S., 578, we said: "*** many executive or administrative acts performed by judicial officers, and many judicial acts performed by ministerial officers, are and must be held valid, ***. The appointment of an officer might...