Axberg v. City of Lincoln

• Decision Date: 20 February 1942
• Docket Number: 31244.
• Citation: 2 N.W.2d 613,141 Neb. 55
• Parties: AXBERG et al. v. CITY OF LINCOLN.
• Court: Nebraska Supreme Court

2 N.W.2d 613

141 Neb. 55

AXBERG et al. v. CITY OF LINCOLN.

No. 31244.

Supreme Court of Nebraska

February 20, 1942

Syllabus by the Court.

1. Under the provisions of section 2, article XI of the Constitution, a home rule charter must be consistent with and subject to the Constitution and laws of this state.

2. Under a home rule charter, a city may provide for the exercise of every power, not contravening constitutional inhibitions, connected with the proper and efficient government of the municipality.

3. Where the legislature has enacted a law affecting municipal affairs, but which is of state-wide concern, such law takes precedence over any action taken by a home rule city under its charter.

4. The preservation of order, the enforcement of law, the protection of life and property, and the suppression of crime are attributes of state sovereignty and matters of state-wide concern, and when the legislature enacts a general law upon any of these subjects with respect to cities of a particular class, such law applies to all cities of the class, including home rule cities.

5. Cities which have adopted a home rule charter, as authorized by the Constitution, are subject to the general laws of the state, except as to municipal matters of strictly local concern.

6. Whether or not an act of the legislature pertains to a matter of state-wide or strictly local concern becomes a question for the courts when a conflict of authority arises.

7. A statute providing for pensions for superannuated and disabled firemen in metropolitan and first-class cities is a matter of state-wide concern applicable to home rule cities within the class.

8. An act of the legislature providing for pensions for superannuated and disabled firemen in metropolitan and first-class cities "except any city of the first class that has heretofore adopted a charter for its own government" is special and class legislation violative of the uniformity provisions of section 18, art. III of the Constitution.

9. A valid classification of cities for purposes of legislation must admit of additions to it. It must not be so constituted as to preclude addition to the numbers included within it.

10. The provisions of section 18, art. III of the Constitution are mandatory, and legislation alleged to be void as class or special legislation is subject to judicial review.

SIMMONS C. J., and MESSMORE and ROSE, JJ., dissenting.

Clarence G. Miles, Frederick H. Wagener, Peterson & Devoe, Max Kier, and Chauncey E. Barney, all of Lincoln, for appellant.

Bernard S. Gradwohl, of Lincoln, for appellees.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and YEAGER, JJ.

CARTER Justice.

This is an action instituted against the city of Lincoln, seeking a declaratory judgment as to the rights, status and other legal relations of the parties under sections 2439 to 2442, inclusive, Comp.St.1922, and for a further declaration that chapter 151, Laws 1923, purporting to amend said sections, is unconstitutional and void. From an adverse judgment defendant appeals.

The record shows that the city of Lincoln is a city of the first class, operating under a home rule charter adopted in 1918 pursuant to the powers granted by article XI of the Nebraska Constitution. The city maintains a paid fire department, and plaintiffs are all paid members of the department, who entered the employment since 1923. It is the contention of plaintiffs that they are entitled to pension benefits under the original firemen's pension law passed in 1895, and that an amendatory act passed in 1923 is unconstitutional and consequently does not affect their rights.

The original firemen's pension act provides in part as follows: "All metropolitan cities, and cities of the first class having a paid fire department, shall pension all firemen of the paid fire department ***." Comp.St.1922, sec. 2439. In 1923 the legislature amended this act to read in part as follows: "All metropolitan cities, and cities of the first class having a paid fire department, except any city of the first class that has heretofore adopted a charter for its own government, shall pension all firemen of the paid fire department ***." Comp.St.1929, sec. 35-201. In 1912 the Constitution of Nebraska was amended in part as follows: "Any city having a population of more than five thousand (5,000) inhabitants may frame a charter for its own government, consistent with and subject to the constitution and laws of this state ***." Const. art. XI, sec. 2. In 1918 the city of Lincoln, pursuant to this provision, enacted its home rule charter. The city of Omaha adopted its home rule charter in 1922, and the city of Grand Island adopted its home rule charter in 1928. No other cities in the state have adopted home rule.

The first question to be answered is whether a statute relating to pensions for superannuated and disabled firemen is applicable to cities which have adopted a home rule charter under constitutional provisions. Under our Constitution, a home rule charter must be consistent with and subject to the Constitution and laws of this state. This means that a provision of a city home rule charter takes precedence over a conflicting state statute only in instances of strictly local municipal concern. Carlberg v. Metcalfe, 120 Neb. 481, 234 N.W. 87. This court has also held that the purpose of the constitutional provision is to render cities independent of state legislation as to all subjects of strictly municipal concern. Consumers' Coal Co. v. City of Lincoln, 109 Neb. 51, 189 N.W. 643. Is the matter of firemen's pensions in metropolitan and first-class cities of strictly municipal concern?

The purpose of the home rule charter provision of the Constitution was to render the cities adopting such charter provisions as nearly independent of state legislation as was possible. Under it a city may provide for the exercise of every power connected with the proper and efficient government of the municipality where the legislature has not entered the field. Where the legislature has enacted a law affecting municipal affairs, but which is also of state concern, the law takes precedence over any municipal action taken under the home rule charter. But where the legislative act deals with a strictly local municipal concern, it can have no application to a city which has adopted a home rule charter. Whether or not an act of the legislature pertains to a matter of local or state-wide concern becomes a question for the courts when a conflict of authority arises.

We have come to the conclusion, after an examination of the authorities, that a statute providing for firemen's pensions is a matter of state-wide concern applicable to all cities within the designated class, whether they be home rule cities or not. In City of Cincinnati v. Gamble, 138 Ohio St. 220, 34 N.E.2d 226, 232, the court said:

"Why has this court coupled together police, fire and health as objects of interest and moment to the whole state? Reflection reveals that there are certain basic reasons that impel such a course; and in conclusion it is well to state them briefly.

"The state, considered in relation to its sub-divisions, is the imperium and as such by its very nature has state control in state affairs. Since the municipality is imperium in imperio only in the exercise of powers conferred upon it by the state Constitution, it must in all other respects be subordinate to state authority. If fire, police and health departments be deemed purely matters of local self-government, they could be abolished and the state would be unable to step in. Obviously the abolishment of any or all of them would affect state interests. So would even impairment. Indeed, police and fire protection and health preservation are essential to the administration of state government in such a way as to accomplish vital purposes expressed in its organic law. *** The Constitution guarantees life, liberty and property and imposes upon the state the duty to protect and defend these rights. That duty does not end at city limits. Control of deadly, contagious diseases may often require uniform state action; prevention of fire may be ineffective without unified effort reaching into urban, suburban and rural sections; and the policing of the state might well be inadequate to public need if done by a state constabulary with power to act only in areas outside municipalities. The state must remain sovereign in all such affairs else its authorities cannot protect rights assured to its citizens by its Constitution. These are fundamental reasons why police, fire and health undertakings are essentially attributes of state sovereignty and matters of state-wide concern."

In a similar case the Wisconsin supreme court said:

"So far as we have been able to discover in all jurisdictions where the question has arisen because of a conflict between a charter ordinance adopted under a home-rule provision of a Constitution and an act of the Legislature, the matter of police and fire protection has been held to be a 'matter of state-wide concern'. ***

"The determination of other courts and a consideration of the fundamental reasons which underlie those determinations require us to hold that the preservation of order, the enforcement of law, the protection of life and property, and the suppression of crime are matters of state-wide concern." Van Gilder v. City of Madison, 222 Wis. 58, 267 N.W. 25, 32, 268 N.W. 108, 105 A.L.R. 244.

And likewise in Luhrs v. City of Phoenix, 52 Ariz. 438, 83 P.2d 283, 287, the court said:

"The jurisdictions that do not have freeholders' charters and also those that have are in accord in holding that the matter of providing pensions for superannuated policemen is of...