Frank, Application of

• Decision Date: 17 January 1969
• Docket Number: No. 36969,36969
• Citation: Frank, Application of, 164 N.W.2d 215, 183 Neb. 722 (Neb. 1969)
• Parties: Application of W. R. FRANK, Trustee etc. SCOTTSBLUFF IMPROVEMENT ASSOCIATION, a Corporation, Appellant, v. CITY OF SCOTTSBLUFF, a Municipal Corporation, et al., Appellees.
• Court: Nebraska Supreme Court

Page 215

164 N.W.2d 215

183 Neb. 722

Application of W. R. FRANK, Trustee etc. SCOTTSBLUFF IMPROVEMENT ASSOCIATION, a Corporation, Appellant, v. CITY OF SCOTTSBLUFF, a Municipal Corporation, et al., Appellees.

No. 36969.

Supreme Court of Nebraska.

Jan. 17, 1969.

Syllabus by the Court

1. A zoning ordinance constitutes the exercise of a governmental and legislative function and a city council adopting a rezoning ordinance which amends a general zoning ordinance acts in a legislative capacity.

2. An appeal or error proceedings does not lie from a purely legislative act by a public body to which legislative power has been delegated.

3. The only remedy in such cases is by collateral attack, that is, by injunction or other suitable action.

4. Review by error proceeding is allowed under section 25--1901, R.R.S.1943, only when a tribunal acts judicially.

Lovell & Raymond, Scottsbluff, for appellant.

Loren Olsson, Lester A. Danielson, Scottsbluff, for appellees.

Heard before WHITE, C.J., SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ., and SCHMIDT, District Judge.

NEWTON, Justice.

This is an error proceeding taken from the action of the mayor and council of the city of Scottsbluff in adopting a rezoning ordinance. The action was dismissed by the trial court and we affirm the judgment.

It appears that there is a jurisdictional feature present which prevents our considering this cause on its merits. A zoning ordinance constitutes the exercise of a governmental and legislative function and a city council adopting a rezoning ordinance which amends a general zoning ordinance acts in a legislative capacity. See Johnston v. City of Claremont, 49 Cal.2d 826, 323 P.2d 71; Besselman v. City of Moses Lake, 46 Wash.2d 279, 280 P.2d 689; McQuail v. Shell Oil Co., 40 Del.Ch. 396, 183 A.2d 572; D'Angelo v. Knights of Columbus Bldg. Assn., 89 R.I. 76, 151 A.2d 495; In re Clements' Appeal, 2 Ohio App.2d 201, 207 N.E.2d 573; Anthony v. City of Kewanee, 79 Ill.App.2d 243, 223 N.E.2d 738.

In Williams v. County of Buffalo, 181 Neb. 233, 147 N.W.2d 776, we held that an appeal or error proceeding does not lie from a purely legislative act by a public body to which legislative power has been delegated. We further stated that the only remedy in such cases is by collateral attack, that is, by injunction or other suitable action.

In Longe v. County of Wayne, 175 Neb. 245, 121 N.W.2d 196, this court held that review by error proceeding is allowed under section 25--1901,...