Dwyer v. Omaha-Douglas Public Bldg. Commission, OMAHA-DOUGLAS

• Decision Date: 25 February 1972
• Docket Number: OMAHA-DOUGLAS,No. 38299,38299
• Parties: Suzanne N. DWYER, Appellee, Cross-Appellant, v.PUBLIC BUILDING COMMISSION et al., Appellants, Cross-Appellees, Daniel C. Lynch, Individually, Intervenor-Appellee.
• Court: Nebraska Supreme Court

Page 236

195 N.W.2d 236

188 Neb. 30

Suzanne N. DWYER, Appellee, Cross-Appellant, v. OMAHA-DOUGLAS PUBLIC BUILDING COMMISSION et al., Appellants, Cross-Appellees, Daniel C. Lynch, Individually, Intervenor-Appellee.

No. 38299.

Supreme Court of Nebraska.

Feb. 25, 1972.

Syllabus by the Court

1. The Legislature has plenary legislative authority limited only by the state and federal Constitutions.

2. The language of the Constitution is to be interpreted with reference to the established laws, usages, and customs of the country at the time of its adoption.

3. The Constitution must be read in connection with the facts of history and the development of a representative form of government.

4. The Constitution as amended must be construed as a whole.

5. Legislative construction of a statutory or constitutional provision, although not conclusive on the courts, when deliberately made is entitled to great weight.

6. The Legislature may create political corporations or quasi-municipal corporations to deal with matters of general public concern and utility.

7. The power to tax being a sovereign power, constitutional provisions relating thereto do not operate as grants of power of taxation to the government, but are merely limitations on a power which would otherwise be unrestricted.

8. Constitutional limitations on the power to tax must be strictly construed.

9. In construing an act of the Legislature all reasonable doubts must be resolved in favor of its constitutionality.

10. The one-half mill levy made by the Omaha-Douglas Public Building Commission under the authority of L.B. 1003, Eighty-second Session of the Nebraska Legislature, is not a county tax subject to the provisions of Article VIII, section 5, Constitution of Nebraska.

11. The one-half mill levy authorized to be made by cities of the metropolitan class for the purposes of L.B. 1003, Eighty-second Session of the Nebraska Legislature, does not contravene the Omaha city charter adopted under the provisions of Article XI, section 5, Constitution of Nebraska.

12. L.B. 1003, Eighty-second Session of the Nebraska Legislature, which enabled cities of the metropolitan class and the county in which such city is located to create a public building commission authorized to furnish facilities for the joint use of the city and county pertains to a matter which is of state concern and not just to a strictly municipal affair.

13. L.B. 1003, Eighty-second Session of the Nebraska Legislature, does not amend either section 23--119, R.R.S.1943, or section 23--120, R.S.Supp., 1971, and therefore does not violate Article III, section 14, Constitution of Nebraska.

14. The power of classification rests with the Legislature, and cannot be interfered with by the courts unless it is clearly apparent that the Legislature has by artificial and baseless classification attempted to evade and violate provisions of the Constitution prohibiting local and special legislation.

15. L.B. 1003, Eighty-second Session of the Nebraska Legislature, does not contravene the provisions of Article III, section 18, Constitution of Nebraska.

16. L.B. 1003, Eighty-second Session of the Nebraska Legislature, does not contravene the provisions of Article IX, sections 2, 4, or 5, Constitution of Nebraska.

17. A building for governmental purposes is not a work of internal improvement under the provisions of Article XIII, section 2, Constitution of Nebraska.

18. The tax authorized to be levied by a city of the metropolitan class under the provisions of L.B. 1003, Eighty-second Session of the Nebraska Legislature, is not a tax for corporate purposes and is one levied by local authority and does not contravene Article VIII, section 7, Constitution of Nebraska.

Herbert M. Fitle, City Atty., Frederick A. Brown, Deputy City Atty., Verne W. Vance, Asst. City Atty., Donald L. Knowles, County Atty., James M. Murphy, Chief Deputy County Atty., Harold M. Zabin, Deputy County Atty., Omaha, for appellants.

McGrath, North, Nelson, Shkolnick & Dwyer, for appellee.

August Ross, Omaha, for intervenor-appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.

CLINTON, Justice.

Plaintiff, a taxpayer in Douglas County, Nebraska, and in the City of Omaha, brings this action on behalf of herself and others similarly situated to challenge the constitutionality of L.B. 1003 enacted by the Eighty-second Legislature, sections 23--2601 to 23--2612, R.S.Supp.1971, L.B. 1003, hereafter referred to as the act, pertains to cities of the metropolitan class, the population of which is more than half the population of the county in which the city is located, and likewise pertains to such counties. It authorizes the county and city to initiate proceedings for the establishment of a building commission which is a 'body politic and corporate and an instrumentality of the state.' The act provides that the commission shall have a governing body of five appointed as provided therein and authorizes the commission to acquire in the 'name of the city and county, by gift, grant, bequest, purchase or condemnation real property'; to annually levy a tax 'for the purposes of its commission not to exceed one half mill on the dollar upon the assessed valuation of all the taxable property in the county'; and to issue bonds which are the general obligation of the commission but not of the state, city, or county. The underlying purpose of the act is expressed in the following language: 'The purpose of sections 23--2601 to 23--2612 is to provide a means whereby buildings, structures and facilities can be acquired, constructed, remodeled or renovated and financed for use jointly by such cities of the metropolitan class and the respective counties in which they are located.' Section 23--2601, R.S.Supp., 1971.

The act grants the commission certain corporate powers, for example, to sue and to be sued; to acquire, hold, and dispose of property; and to make by-laws and regulations for the management of its affairs and the use of its projects. It authorizes, with the consent of the city and county, use of their facilities, agents, and employees, and authorizes the commission to reimburse the city and county for such use. It authorizes agreements with the city or county or both as to the operation, maintenance, repair, and use of the property; it authorizes with the consent of the city and county agreements with various governmental entities state and federal for use of the projects; and it grants to the commission power of eminent domain. The authority of the commission to issue bonds requires prior approval of the city and county. The act also provides: 'The full faith and credit of the commission shall be pledged to the payment and security of the bonds and notes issued by it, whether or not such pledge shall be set forth in the bonds or notes. So long as any of its bonds or notes are outstanding, the commission shall have the power and be obligated to levy taxes within the limitation as provided in section 23--2604 to the extent required, together with any other money available to the commission therefor to pay the principal of and interest and premium, if any, on such bonds and notes as the same become due and payable. . . . The bonds, notes, obligations or liabilities of a commission shall not be a debt of the State of Nebraska or of the city or county for which the commission is established and neither the state, city, nor the county shall be liable thereon or therefor, nor shall such bonds, notes, obligations or liabilities be payable out of any money other than the money of the commission issuing or incurring the same.' The act contains many other provisions, some of which will be noted as this opinion proceeds.

Pursuant to the provisions of the act the county board of Douglas County enacted a resolution activating the Omaha-Douglas Public Building Commission and appointed two members of the commission. The mayor of Omaha, with the approval of the city council, appointed two members and the four members appointed the fifth. On July 8, 1971, the commission levied, pursuant to the provisions of the act, a one-half mill tax on all taxable property in the county.

The case was tried on stipulation of facts, reference to which will be made as necessary. It was stipulated that for the 1971--72 fiscal year the mill levy for Douglas County is at the constitutional limit and if the levy made by the commission is includable in the county levy then the total county levy is in excess of the limitation provided by Article VIII, section 5, Constitution of Nebraska, which is as follows: 'County authorities shall never assess taxes the aggregate of which shall exceed fifty cents per one hundred dollars actual valuation as determined by the assessment rolls, except for the payment of indebtedness existing at the adoption hereof, unless authorized by the vote of the people of the county.'

The district court determined the levy by the commission was in effect a levy for county purposes and therefore in excess of the constitutional limit and void. It enjoined the commission from expending, pending final disposition of the case, any funds which may be raised by the one-half mill levy. The trial court found in all other respects the act was constitutional. The defendants appealed. The plaintiff cross-appeals and claims the act is unconstitutional in toto contending, as she did in the trial court, the act is in violation of the following constitutional provisions, to wit, Article I, section 26; Article III, sections 14 and 18; Article VIII, sections 5 and 7; Article IX, sections 2, 4, and 5; and Article XIII, section 2, Constitution of Nebraska.

The necessity or wisdom of the legislation is not for this court to determine. We only determine whether it contravenes some constitutional provision which renders it invalid in whole or in part. We first determine the correctness of the trial court's decision on the...