City of Mitchell v. Western Public Service Company

• Decision Date: 12 January 1933
• Docket Number: 28639
• Citation: 246 N.W. 484,124 Neb. 248
• Parties: CITY OF MITCHELL, PETITIONER, v. WESTERN PUBLIC SERVICE COMPANY, OBJECTOR
• Court: Nebraska Supreme Court

246 N.W. 484

124 Neb. 248

CITY OF MITCHELL, PETITIONER, v. WESTERN PUBLIC SERVICE COMPANY, OBJECTOR

No. 28639

Supreme Court of Nebraska

January 12, 1933

Original application for appointment of a court of condemnation, and objections thereto. Objections overruled.

OBJECTIONS OVERRULED.

Syllabus by the Court.

1. Chapter 188, Laws 1919 (Comp. St. 1929, §§ 19-701 to 19-707) does not violate section 14, art. 3 of the Constitution, for the act contains only the one subject and that subject is clearly expressed in its title.

2. The board of appraisers provided for by chapter 188, Laws 1919 (Comp. St. 1929, §§ 19-702, 19-703), though termed a " court of condemnation," does not constitute a court under the Constitution and laws of this state, although such board exercises functions judicial in their nature; and it was competent, under the Constitution, for the legislature to designate the district judges as a class from which appraisers should be chosen and to authorize this court to select the district judges to act as such appraisers.

3. When the Constitution was adopted there existed no right of trial by jury in cases involving the exercise of the right of eminent domain; and so the act involved here is not violative of section 6, art. 1 of the Constitution, that " The right of trial by jury shall remain inviolate."

4. The act is not a special act regulating the practice of courts of justice prohibited by the seventh interdiction of section 18, art. 3 of the Constitution.

5. The act, in authorizing the appraisers to apportion costs, and in requiring a cost bond and payment for a transcript as a condition of appeal, does not violate the equal protection and due process clauses of the federal Constitution (Amendment 14).

Original condemnation proceeding by the City of Mitchell against the Western Public Service Company.

Order in accordance with opinion.

ROSE, J., dissenting.

C. M. Palmer, Wright & Wright and Fred A. Wright, for petitioner.

Clarence A. Davis, Morrow & Morrow and Mothersead & York, for objector.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE JJ. ROSE, J., dissenting.

OPINION

GOSS, C. J.

This arises upon the original application of the city of Mitchell for the appointment of three district judges as a "court of condemnation;" and upon the objections of the Western Public Service Company, owner of the electric light and power plant and property sought to be acquired by the city by exercise of the power of eminent domain.

The mayor and city council certified to this court that, at a special election, held on October 4, 1932, under article 7, ch. 19 (sections 19-701 to 19-707) Comp. St. 1929, more than the required 60 per cent. of the votes cast at the election by qualified electors were in favor of the question submitted to the electors. The certificate quotes the question submitted and states that 578 votes favored it and 93 votes were against it. No objection is made to the form or facts certified. All objections made by the company attack the constitutionality of the act upon which the proceedings are based and upon which appointment by this court would be predicated. Within 30 days after the receipt of the certificate this court, in order to comply strictly with the terms of section 19-702, Comp. St. 1929, and because the parties consumed the 30 days in preparing their briefs and making their oral arguments, appointed three district judges from three judicial districts, but withheld any order requiring such judges to attend at the county seat at a stated date to organize and proceed with its duties. Full consideration of the briefs and oral arguments of the parties will determine whether such further order will be made or whether the order of appointment will be set aside.

The company makes various objections to the constitutionality of the act and to the jurisdiction of the court. One of these is that the act contains more than one subject and that the title does not express the subject covered by the act, all in contravention of that portion of section 14, art. III of the state Constitution, which provides: "No bill shall contain more than one subject, and the same shall be clearly expressed in the title."

The act in question is a complete act in itself. It comprises article 7, ch. 19, Comp. St. 1929, consisting of sections 19-701 to 19-707. The title and text of the act, as passed by the legislature and first printed, are found in the 1919 Session Laws, ch. 188. The title reads: "An act relating to the exercise of the power of eminent domain by cities of the first or second class for acquiring public utility properties." The first three sections of the act extend the power of eminent domain over plants or systems of the nature involved here, provide for the appointment of three district judges as a "court of condemnation," and fix the procedure covering the ascertainment and finding of the value of such plant or system. Section 4 provides for appeal to the district court, and section 5 provides for appeal to the supreme court. Both of these latter named sections grant to the city authorities the power, for purposes of tender and payment of a final judgment as to value, to issue and sell bonds of the city "without vote of the people." The company presents this phase of its objections in the form of a question--"Is this act broad enough to include the authority to issue general revenue bonds of the city as is done by the act?" The company means, and argues, that the title is not broad enough to include the terms of the act itself providing for the issuance of bonds to pay for the property to be acquired by condemnation.

The Constitutions of about three-fourths of the states contain provisions somewhat similar to that under consideration here. Some are identical. Others have additional features. The cases under them show great variety. Many are cited by counsel. They indicate that each legislative act, including its title, must be considered by itself in determining whether it violates the constitutional provision.

"The main purpose of the constitutional provision * * * was to prevent surreptitious legislation, and not to put the lawmakers in a straight-jacket." State v. Johnson, 116 Neb. 249, 216 N.W. 828. A title is not expected to specify minutely all the provisions of the act; the court will not be warranted in holding that an act of the legislature is void because a better title might have been adopted, if the general purpose of the act is expressed by the title, and the matter contained in the body of the act is germane thereto. State v. Ure, 91 Neb. 31, 135 N.W. 224, and citing Nebraska cases on pages 42, 43. Referring to the requirements of this constitutional provision, Cooley's Constitutional Limitations (8th ed.) 295, says: "It may therefore be assumed as settled that the purpose of these provisions was: First, to prevent hodge-podge or 'log-rolling' legislation; second, to prevent surprise or fraud upon the legislature by means of provisions in bills of which the titles gave no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard, by petition or otherwise, if they shall so desire."

The words "relating to" in the title of the act suggest a reference to Webster's dictionary. There the intransitive verb "relate" is defined: "To stand in some relation; to have bearing or concern; to pertain; refer;--with to ."

The title to the act gave notice that the text of the bill related, pertained to, referred to and was concerned with the exercise of the power of eminent domain by the smaller cities of the state desiring to acquire public utility properties. All entitled to notice of the contents of the bill were presumed to know that such property could not be acquired by condemnation in the exercise of the power of eminent domain without paying for it. For the state Constitution says: "The property of no person shall be taken or damaged for public use without just compensation therefor." Const. art. I, sec. 21. If any city within the prescribed class had the money on hand with which to pay for a public utility property, it is safe to assume that its voters would know it before voting to acquire such a property. If it had not the funds, they would scarcely be heard to say that they did not know that bonds would have to be issued to carry out their decision at the polls to exercise the power of condemnation and to comply with the mandate of the Constitution that the element of payment must accompany the act of taking over the ultimate title to the property condemned. Moreover, while the bill for the act was pending in the legislature, what member thereof, or what citizen, could truly say that the title of the act did not give him as full notice of the power to issue bonds, if necessary to pay for the property to be condemned, as of any other power contained in the act? We are of the opinion that the act was confined to the one subject of the exercise of the power of eminent domain in acquiring public utility property; that the text of the act was germane to the title thereof; that it contained only one subject, and that the act is not violative of the constitutional provision heretofore discussed.

Section 1, art. II of the Nebraska Constitution creates the legislative, executive and judicial departments, and prohibits each from exercising any power belonging to another except as expressly directed or permitted. Section 1, art. V vests the judicial power of the state in a supreme court, ...