City of Scottsbluff v. Tiemann, 37463

• Decision Date: 06 March 1970
• Docket Number: No. 37463,37463
• Citation: 175 N.W.2d 74,185 Neb. 256
• Parties: CITY OF SCOTTSBLUFF, Nebraska, a Municipal Corporation, Plaintiff, v. Norbert T. TIEMANN, Governor of the State of Nebraska, Defendant.
• Court: Nebraska Supreme Court

Page 74

175 N.W.2d 74

185 Neb. 256

CITY OF SCOTTSBLUFF, Nebraska, a Municipal Corporation, Plaintiff, v. Norbert T. TIEMANN, Governor of the State of Nebraska, Defendant.

No. 37463.

Supreme Court of Nebraska.

March 6, 1970.

Syllabus by the Court

1. A statute is not to be read as if open to construction as a matter of course.

2. Where the words of a statute are plain, direct, and unambiguous, no interpretation is needed to ascertain the meaning.

3. It is not within the province of a court to read a meaning into a statute that is not warranted by the legislative language. Neither is it within the province of a court to read anything plain, direct, and unambiguous out of a statute.

4. A statute classifying cities for legislative purposes in such a way that no other city may ever be added to the class violates the constitutional provision forbidding special laws where general laws can be applicable.

5. Generally, a classification which limits the application of the law to present condition, and leaves no room or opportunity for an increase in the numbers of the class by future growth or development, is special, and a violation of Article III, section 18, of the Constitution of Nebraska.

6. When invalid portions of a statute are so interwoven with the rest of the act so that the act may not be operative with the void portions eliminated or where it is obvious from an inspection of the act that the invalid portion formed the inducement for the passage of the act, the whole act fails.

7. It is competent for the Legislature to classify objects of legislation and if the classification is reasonable and not arbitrary, it is a legitimate exercise of legislative power.

8. A legislative classification, in order to be valid, must be based upon some reason of public policy, some substantial difference of situation or circumstances, that would naturally suggest the justice or expediency of diverse legislation with respect to the objects to be classified.

9. Classifications for the purpose of legislation must be real and not illusive; they cannot be based on distinctions without a substantial difference.

Loren G. Olsson, Scottsblugg, for plaintiff.

Clarence A. H. Meyer, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for defendant.

Heard before WHITE, C.J., CARTER, SPENCER, SMITH and McCOWN, JJ., and SCHEELE and BOYLES, District Judges.

WHITE, Chief Justice.

This is an original action instituted in this court and brought by the City of Scottsbluff alleging the unconstitutionality of an act of the 1969 Legislature which directs certain cites of the first class, falling within certain prescribed population limits, to establish, maintain, and financially support a municipal court. In addition, the petition asks that this court enjoin the Governor from appointing a judge to fill a vacancy on the purported municipal court in Scottsbluff, Nebraska.

The issues presented by the pleadings are solely issues of law. Proper analysis of the constitutional issues involved necessitates the thorough understanding of the pertinent provisions of the legislative bill as originally adopted and an analysis of its subsequent admendments. Legislative Bill 1293, which is the act in question in this case, as originally enacted on May 5, 1969, provided in part: (Italics indicate new language.)

'Sec. 3. There is hereby established and created in each city of the metropolitan * * *, primary, And first * * * class cities having more than thirteen thousand population located in a county having a population of more than thirty-three thousand inhabitants according to the 1960 federal census, a municipal court, which shall be held in such place as may be provided for that purpose within such city. Any other city of the first class may establish a municipal court to be subject to the provisions of Chapter 26, article 1, upon a vote of the qualified electors of such city. Any proposition to establish such a municipal court shall be submitted by action of the city council at any regular municipal clection.

'Sec. 4. In each city of the first class having more than thirteen thousand population located in a county having a population of more than thirty-three thousand inhavitants according to the 1960 federal census there shall be one judge of the municipal court, and when authorized by the governing body there shall be two judges of the municipal court, who shall be selected and retained in office in accordance with the provisions of Article V, section 21 (the merit system of judicial selection), of the Constitution of Nebraska.

'Sec. 5. Each judge of the municipal court in a city of the metropolitan * * * primary, Or first class having more than thirteen thousand population located in a county having a population of more than thirty-three thousand inhabitants according to the 1960 federal census shall be paid a salary of fifteen thousand dollars per annum, except as provided in section 26--103,01. * * * The employees and assistants of the clerk of the municipal court in a city of the * * * First class having more than thirteen thousand population located in a county having a population of more than thirty-three thousand inhabitants according to the 1960 federal census shall receive such salary as may be fixed by the city commission or council. All salaries shall be paid out of the general fund of such cities.

'Sec. 6. In cities of the metropolitan * * * primary, And first class Having more than thirteen thousand population located in a county having a population of more than thirty-three thousand inhabitants according to the 1960 federal census the municipal court shall in all cases, unless otherwise provided by law, have jurisdiction over territory coextensive with the boundaries of the justice of the peace districts in which such courts are located, as such boundaries are now or hereafter established; * * *.

'Sec. 7. The party appealing from a decree, judgment, or order of a municipal court in metropolitan * * * primary, Or first class city Having more than thirteen thousand population located in a county having a population of more than thirty-three thousand inhabitants according to the 1960 federal census, or any part thereof, shall, within ten days * * *.

'Sec. 8. Any city attorney of a city having a nunicipal court may sign and prosecute complaints in the municipal court for misdemeanors, which are violations of state law, and which were committed within the jurisdiction of such court.'

From May 27, 1969, until the adjournment of the Legislature on September 24, 1969, this act was subjected to detailed and piecemeal amendments which is significant with relation to the constitutional issues raised herein.

Section 3 of L.B. 1293, which creates the court and sets its population classification was subsequently amended by L.B. 787 on May 27, 1969, changing the controlling federal consus standard from '1960' to 'most recent.' This section of the statute was subsequently amended on another subject but leaving the 'most recent' language intact. See L.B. 1089, on June 11, 1969.

Section 4 of L.B. 1293 provides for a judge of the municipal court created under section 3, the creation of which is based upon the population figures according to the 1960 federal census. On September 24, 1969, section 4 was amended by L.B. 1070. However, the amendment pertained only to the designation of commencement of the full term of office for such judge, and left untouched the reference to the '1960 federal census' as originally enacted.

Section 5 of L.B. 1293, with relation to salary, was amended by L.B. 853 on July 17, 1969, changing the amount of the salary and the reference to the federal census from '1960' to 'most recent.'

Section 6 of L.B. 1293, which was not amended, deals with the jurisdiction of the newly created municipal courts in certain first class cities Based upon the 1960 federal cansus.

Section 7 of L.B. 1293, which was not amended, provides for a method of appeal from the newly created courts, and again makes reference to those cities of the first class, Based upon the 1960 federal census.

The history of this legislation in chronological summary is as follows:

                                                                             Approved
                     Section              Subject         Final Passage    by Governor
                Sec. 6 of L.B.     Jurisdiction of court  May 7, 1969     May 12, 1969
                1293
                Sec. 7 of L.B.         Appeals from       May 7, 1969     May 12, 1969
                1293                       court
                Section 3 of L.B.       Creation of
                  1293 as                  court
                  amended by
                  Sec. 1 of
                  LB 787 and                              May 27, 1969    May 28, 1969
                  reamended
                  by Sec. 1 of
                  LB 1089                                 June 11, 1969   June 13, 1969
                Sec. 5 of L.B.           Salary of        July 17, 1969   July 24, 1969
                  1293 as                 judges
                  amended
                  by Sec. 1 of
                  LB 853
                Sec. 4 of L.B.           Number of        Sept. 24, 1969  Sept. 26, 1969
                  1293 as                 judges
                  amended                 terms
                  by Sec.6 of            vacancies
                  LB 1070
                

In this declaratory judgment action we hold that L.B. 1293 as amended is invalid on the grounds that it constitutes special legislation, in violation of Article III, section 18, of the Constitution of Nebraska, because (1) it creates a permanently closed class, and (2) it is totally arbitrary and unreasonable in its method of classification.

According to the 1960 federal census only 2 of the 22 first class cities in Nebraska, Grand Island and Scottsbluff, meet the population requirements set forth in the bill, of more than 13,000 inhabitants in a city situated in counties of more than 33,000 inhabitants. The class is thus permanently closed with respect to the provision for judges (section 4), the provision for jurisdiction (section 6), and the method of appeal from the municipal courts thus created (section 7). The law is unmistakably clear that a statute...