Carlberg v. Metcalf
| Decision Date | 23 December 1930 |
| Docket Number | No. 27675.,27675. |
| Citation | 234 N.W. 87,120 Neb. 481 |
| Parties | CARLBERG v. METCALF. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
It is the well-established law of this state that, in matters of strictly municipal concern, cities which have adopted a home rule charter under article 11 of the Constitution are not subject to state legislation. But, in such cities, state legislation is not excluded upon such subjects as pertain to state affairs as distinguished from strictly municipal affairs.
Syllabus by the Court.
The Constitution does not define which laws relate to matters of strictly municipal concern and which to state affairs. There is no sure test which will enable us to distinguish between matters of strictlymunicipal concern and those of state concern. The court must consider each case as it arises and draw the line of demarcation.
Syllabus by the Court.
Education has always been a matter of state concern in Nebraska, as distinguished from a matter of strictly municipal concern.
Syllabus by the Court.
The schools, in which are educated the children who are to become in time the directors of our political destinies, are matters of state and not of strictly municipal concern.
Syllabus by the Court.
The constitutional provision by which certain cities may adopt a home rule charter does not render invalid legislation which provides that such a city may establish and maintain a municipal university.
Syllabus by the Court.
In accepting the privilege conferred upon it by such legislation, the city, in providing said educational institution, acts as a political subdivision of the state in a matter of state concern.
Appeal from District Court, Douglas County; Dineen, Judge.
Action by C. George Carlberg against Richard L. Metcalf and others, Councilmen of the City of Omaha, and others. From a judgment of dismissal, plaintiff appeals.
Affirmed.
John P. Breen, of Omaha, for appellant.
John F. Moriarty, Harry B. Fleharty, Thos. J. O'Brien, F. H. Woodland, and Clinton Brome, all of Omaha, for appellees.
Heard before GOSS, C. J., and ROSE, DEAN, GOOD, THOMPSON, EBERLY, and DAY, JJ.
This is an action brought by a resident, elector and tax payer to enjoin the city of Omaha from proceeding to carry out the provisions of an act of the legislature authorizing it to establish and maintain a municipal university. The plaintiff contends that the legislative act, chapter 200, Laws 1929, is unconstitutional and void. The defendants filed demurrers to the petition of the plaintiff, which were sustained by the trial judge, the Honorable Frank M. Dineen. The plaintiff elected to stand upon his petition and refused to plead further, whereupon the action was dismissed.
The record in this case is very brief, consisting only of the petition and the demurrer of the several defendants. The defendants are the councilmen of the city of Omaha and the appointed regents of the projected university. In the present state of the record, the pleadings establish the questions of fact in the case. The city of Omaha, pursuant to the power and authority conferred upon such a city by article 11 of the Constitution became on July 18, 1922, a home rule city by adopting the “existing law” or charter governing it as its “home rule” charter. The legislative act, which the appellant contends is unconstitutional and void, authorizes the establishment, maintenance, and operation of a municipal university in cities of the metropolitan class, upon a vote of the electors thereof, provides for its management and control by a board of regents, and a special tax to be levied annually for the support of such university. By virtue of the authority conferred by this legislative act, the question was submitted to a vote of the electors of the city of Omaha, with the result that the majority of the votes cast upon the proposition were in favor of it. The city council of the city of Omaha then passed an ordinance establishing the university under the provisions of the statute.
It is urged by the appellant that, the city having adopted a “home rule” charter under the provisions of article 11 of the Constitution, the legislature was excluded from any right to authorize the establishment and maintenance of the University provided for by said act. The constitutional provision under which the city adopted its “home rule” charter is 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.” Section 2.
The effect of the adoption of a “home rule” charter has been heretofore considered by this court in several cases. In Schroeder v. Zehrung, 108 Neb. 573, 188 N. W. 237, we held: “The provisions of section 3, art. 3, of the Constitution, relating to the referendum, have reference to the acts of the state Legislature only, and are not applicable to municipal legislation.” The court cited with approval upon this point, Simpson v. Paddock, 195 Mich. 581, 161 N. W. 898;Heilbron v. Sumner, 186 Cal. 648, 200 P. 409; and Ex parte Johnson, 20 Okl. Cr. 66, 201 P. 533.
In Consumers' Coal Co. v. City of Lincoln, 109 Neb. 51, 189 N. W. 643, the court proceeded to advance a step in defining the situation created by the adoption of a “home rule” charter under our constitutional provision: “By section 2, art. 11, of the Constitution, power is conferred upon the electorate of a city to frame a charter for its own government as fully and completely as the electorate of the state may form a state Constitution, subject only to the limitations contained in said section that said charter shall be ‘consistent with and subject to the Constitution and laws of this state.’
“The purpose of the constitutional provision is to render cities independent of state legislation as to all subjects which are of strictly municipal concern; therefore, as to such matters general laws applicable to cities yield to the charter.” Then follows in order of consideration by this court Sandell v. City of Omaha, 115 Neb. 861, 215 N. W. 135, which cites, quotes, and approves the rule as to subjects which are exclusively for a “home rule” city to determine and from which state legislation is excluded.
In Schroeder v. Zehrung, 108 Neb. 573, 188 N. W. 237, the court again held:
To a like effect is State v. Johnson, 117 Neb. 301, 220 N. W. 273, in which we used this language: “In matters relating exclusively to municipal affairs, the Lincoln Home Rule Charter prevails over conflicting provisions in a state statute containing legislation on the same subject applicable to cities of different classes generally.”
[1][2] We have cited at some length from the cases heretofore decided by this court, because an examination of the adjudicated cases in other jurisdictions impresses us with the desirability and even the necessity of keeping the history of the judicial construction of this constitutional provision ever in mind. It is the well-established law of this state that, in matters of strictly municipal concern, cities which have adopted a “home rule” charter, under article 11 of the Constitution are not subject to state legislation. But, in such cities, state legislation is not excluded upon such subjects as pertain to state affairs as distinguished from strictly municipal affairs.
Now, the appellant contends that the establishment and maintenance of the university by the city of Omaha, as provided by chapter 200, Laws 1929, is a municipal concern, a municipal affair as distinguished from a matter of state concern. A careful perusal of the decisions of the courts of other states, wherein the question has arisen as to what are the functions of the municipality and the functions of the state in relation to each other, clearly indicates that this is a difficult and intricate task.
To support his contention, the appellant cites the case of Sinclair v. City of Lincoln, 101 Neb. 163, 162 N. W. 488, L. R. A. 1917E, 842. This case held that a tax authorized by the city of Lincoln, to induce the state to keep the state university in Lincoln rather than move it to a location on the state farm, 2 1/2 miles distant and just outside the city limits, was one for a corporate or municipal purpose. This case arose and was decided prior to the adoption of a home rule charter by the city of Lincoln. Hence, it was not decided with reference to a “home rule” charter or the constitutional provision authorizing its adoption. However, considering the case as an authority upon the question presented here, it decided that the matter of the location of the state university was a municipal matter or concern. It cannot be made to hold, by any construction of words, that the university was a “municipal affair” or a “municipal concern” of the city of Lincoln.
Turner v. Hattiesburg, 98 Miss. 337, 53 So. 681, also cited by the appellant is almost identical to the Sinclair Case. There is dictum in the case which supports the appellant's contention. Nevertheless, the question before the court in that case was the validity of a tax for the purpose of procuring the location of a state normal school in that city. Whatever may be stated in that opinion, the point decided, as shown by a careful reading of the opinion and the syllabus, was that taxes to pay bonds, the proceeds of which were used to induce the location of the state normal college, were for a municipal purpose. Likewise, this case was not decided under a “home rule” charter adopted under a constitutional provision, with a view...
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