Elliott v. Wille

• Decision Date: 20 October 1924
• Docket Number: No. 23850.,23850.
• Citation: 200 N.W. 347,112 Neb. 78
• Parties: ELLIOTT v. WILLE ET AL.
• Court: Nebraska Supreme Court

112 Neb. 78

200 N.W. 347

ELLIOTT

v.WILLE ET AL.

No. 23850.

Supreme Court of Nebraska.

Oct. 20, 1924.

Syllabus by the Court.

A legislative act, which authorizes private individuals to create and fix the boundaries of a district for a public improvement, to be paid for by taxes levied on the property within the district, without any provision for determination by a competent tribunal whether the creation of the district and the construction of the improvement will promote public health, convenience or welfare, and without any provision for determination whether the owner's property has been arbitrarily or unjustly included within the district, or whether his property will receive any benefit from the proposed improvement, is invalid because it authorizes the taking of private property for a public use without just compensation and deprives the owner of his property without due process of law.

The Legislature may not delegate to private individuals either legislative or judicial functions.

Sections 7147-7154, Comp. St. 1922, as amended by chapter 169, Laws 1923, authorize the taking of private property for a public use without just compensation and authorize the taking of private property without due process of law, and are violative of both the state and federal Constitutions.

Appeal from District Court, Platte County; Lightner, Judge.

On rehearing. Reversed, with directions.

For former opinion, see 198 N. W. 861.Lambert, Shotwell & Shotwell, of Omaha, for appellant.

Wymer Dressler, of Omaha, and Abbott, Rohn & Dunlap, of Fremont, amici curiæ.

Courtright, Sidner, Lee & Gunderson, of Fremont, for appellees.

Heard before MORRISSEY, C. J., and LETTON, ROSE, DEAN, GOOD, and THOMPSON, JJ.

PER CURIAM.

This case has been heretofore submitted to this court and an opinion rendered. Elliott v. Wille, 198 N. W. 861. Upon consideration of a motion for rehearing a reargument has been allowed.

[1] This action involves the validity of sections 7147-7154, Comp. St. 1922, and of the amendment to section 7153 contained in chapter 169, Laws 1923. A statement of the issues and an outline of the legislative provisions involved in this action may be found in the former opinion and will not be here repeated.

In the former opinion we held:

“The distribution of light, heat, and power as contemplated in sections 7147-7154, Comp. St. 1922, and sections 7153, as amended by chapter 169, Laws 1923, is for a public use as distinguished from a private purpose.”

We still entertain the view that the distribution of light, heat and power in rural communities by the use of electricity by a district, properly created for the purpose in such a manner as to safeguard the rights of owners of property within the district, is or may be for a public use and purpose, but, in determining whether any particular legislation which authorizes the creation of such a district is valid, it is proper to examine and ascertain what may be done or accomplished under and pursuant to such statutory provisions. If the statutes, when fairly construed, authorize and sanction the taking of private property without just compensation, or deprive persons of their property without due process of law, then such legislation must be held invalid.

Under the legislative acts in question, when a petition, praying for the formation of a district for the purpose of distributing light, heat or power by the use of electric current, and for the election of three directors of such proposed district, setting forth the boundaries of the proposed district, the estimated cost of the distribution system and the method proposed for raising necessary funds, whether by bonds or special tax, and signed by not less than 10 per cent. of the freeholders of the proposed district, is filed with the county board, it then becomes the duty of such board to order a special election within the proposed district. At this election all who are electors under the general election laws and reside in the proposed district may vote, and, if a majority of the votes cast at such special election is in favor of the proposed district, it then becomes a district. The district may then, through its officers, proceed to construct a distribution system and to levy taxes or issue bonds to defray the cost of the system.

At first blush it might seem that the plan of organizing such districts is fair and equitable and that injustice to no one could be apprehended. Upon a closer scrutiny and a careful consideration of the various provisions of the statutes, it becomes apparent that the petitioners...