City of S. Omaha v. Taxpayers' League

• Decision Date: 09 November 1894
• Citation: 42 Neb. 671,60 N.W. 957
• Parties: CITY OF SOUTH OMAHA ET AL. v. TAXPAYERS' LEAGUE ET AL.
• Court: Nebraska Supreme Court

42 Neb. 671

60 N.W. 957

CITY OF SOUTH OMAHA ET AL.

v.TAXPAYERS' LEAGUE ET AL.

Supreme Court of Nebraska.

Nov. 9, 1894.

Syllabus by the Court.

1. Where it is sought by legislative enactment to amend and repeal a former act, or any section or sections thereof, there should be a compliance with requirements of the constitution in reference to amendment and repeal of laws.

2. The act entitled “An act to amend sections one (1) and two (2) of an act entitled ‘An act to incorporate cities of the first class having less than twenty-five thousand and more than eight thousand inhabitants, and regulating their duties, powers, and government,’ known as chapter 15 of the General Laws of 1889 and passed and approved March 14, 1889” (Laws 1891, pp. 162, 163), not having complied with the requirement of the constitution contained in section 11 of article 3, wherein it is provided that “no law shall be amended unless the new act contains the section or sections so amended, and the section or sections so amended shall be repealed,” is void and without effect.

3. Where the acts of a municipal corporation are presumably without color of law, an action of injunction may be maintained by a party showing a sufficient interest, and that irreparable injury will result to him through such acts, and this notwithstanding a decision of the issues in the case may involve a decision of the particular class to which the municipal corporation belongs.

4. Under the facts as developed in this case, held that injunction was the proper remedy.

Error to district court, Douglas county; Ferguson, Judge.

Petition by the Taxpayers' League and others, in behalf of themselves and all other taxpayers in the city of South Omaha, against the city of South Omaha and others for an injunction to restrain the payment of increased salaries to city officials. Judgment was rendered for plaintiffs, and defendants bring error. Reversed and action dismissed.

E. T. Farnsworth, for plaintiffs in error.

R. B. Montgomery, H. G. Bell, and Edmund C. Lane, for defendants in error.

HARRISON, J.

In this case the defendants in error filed a petition in the district court of Douglas county, alleging: (1) The Taxpayers' League of South Omaha, Neb., is a corporation duly organized and existing under and by virtue of the laws of the state of Nebraska, and is located in the city of South Omaha, and is a taxpayer thereof, and is duly authorized to sue and be sued, in its own behalf and in behalf of the taxpayers of said city, in any action pertaining to the welfare of said city or its citizens. (2) That the plaintiff Thomas J. O'Neill is an elector of the city of South Omaha, and has been for more than a year last past, and is a taxpayer in said city, having a large amount of property in said city, both real and personal, subject to taxation therein, and is and has been a heavy taxpayer in said city. (3) That the said plaintiffs herein bring this action in their own behalf and in behalf of the citizens and taxpayers of the city of South Omaha. (4) That the said defendant the city of South Omaha is a city of the second class, having more than 5,000 and less than 10,000 inhabitants, according to the census taken and promulgated under and by the authority of the United States in the year 1890, being the last census taken and promulgated by the United States or the state of Nebraska. (5) That the defendant Ed Johnston was elected and is acting as mayor of the said city of South Omaha; that James Bulla, William M. Wood, Frank Koutskey, Henry Meis, Ed Conley, John J. Ryan, W. M. Mullala, and John S. Walters are the acting city council of the said city of South Omaha; that Joseph J. Maly is the acting clerk of the said city of South Omaha; that Thomas Hector is the acting treasurer of the said city of South Omaha. (6) That the laws of the state of Nebraska governing cities of the second class (sections 2735, 2736, Cobbey's Consol. St. Neb.) provide that the salaries of all officers shall be fixed by ordinance, not exceeding the following sums respectively: The city engineer not exceeding $5 per day for each day actually employed, and not exceeding $500 in any one year; the city clerk, $500; the city attorney, $500, etc. (7) That contrary to said law, and without authority, said mayor and city council adopted, approved, and published the following ordinance, to wit: “Ordinance No. 568. An ordinance fixing the salaries of the city attorney, city clerk and city engineer of the city of South Omaha, Nebraska, and repealing all ordinances or parts of ordinances in conflict herewith. Be it ordained by the mayor and city council of the city of South Omaha, Nebraska: Section 1. That the salaries of the city attorney, city clerk and city engineer of the city of South Omaha be and are hereby fixed as follows: City attorney, $1,200.00 per annum; city clerk, $1,000.00 per annum; city engineer, $1,000.00 per annum. Said salaries shall be payable in monthly installments by warrants drawn on the city treasurer in the usual form. Section 2. All ordinances or parts of ordinances in conflict herewith are hereby repealed. Section 3. This ordinance shall take effect and be in force from and after its passage.” (8) That the defendants herein, without right or legal authority, intend and are about to pay the city attorney, one E. T. Farnsworth, city engineer, one ______ Beal, and city clerk, one Joseph J. Maly, of said city, the increased salaries allowed and provided for in said ordinance out of the money collected as taxes from the plaintiffs and other taxpayers of said city. (9) The plaintiffs further represent that unless the defendants are restrained by injunction they will proceed to audit, allow, and pay said illegal salaries to said officers out of the money collected as aforesaid, and that these plaintiffs and other taxpayers of said city will be greatly damaged and irreparably injured by said unlawful and illegal appropriations of said funds, and that the plaintiffs and taxpayers of said city will be without any adequate remedy at law. And praying an injunction against the auditing and allowing of any claim of the city attorney, city clerk, and city engineer against the city of South Omaha for salaries in excess of the sums fixed as salaries for such officers in the charter governing cities of the second class, and the ordering drawn, the drawing, signing, issuance, and payment of any warrant or warrants founded upon any such claim, and that the ordinance set forth in the petition fixing the salaries of the city attorney, city clerk, and city engineer be declared illegal and void.

To this petition the city filed to certain parts an answer, and to other parts a demurrer, as follows: “(1) Defendants deny that South Omaha is a city of the second class, and in this connection allege that it is a city of the first class; deny the allegations contained in the first paragraph of said petition; deny the allegations contained in the last two (2) lines of the third paragraph of said petition; deny all the allegations contained in the fourth paragraph of said petition; deny the allegations contained in the first line of the seventh paragraph of the petition; deny the allegations contained in the first line of the eighth paragraph of said petition, and deny each and every allegation contained in the last...