Hall v. Cox Cable of Omaha, Inc.

• Decision Date: 03 December 1982
• Docket Number: No. 44417,44417
• Parties: Harold HALL, Appellant and Cross-Appellee, v. COX CABLE OF OMAHA, INC., a Nebraska corporation, et al., Appellees and Cross-Appellants.
• Court: Nebraska Supreme Court

Page 595

327 N.W.2d 595

212 Neb. 887

Harold HALL, Appellant and Cross-Appellee, v. COX CABLE OF OMAHA, INC., a Nebraska corporation, et al., Appellees and Cross-Appellants.

No. 44417.

Supreme Court of Nebraska.

Dec. 3, 1982.

Syllabus by the Court

1. Demurrer. A general demurrer admits only such facts as are well pleaded and does not admit mere conclusions of the pleader.

2. Statutes. Special provisions of a statute in regard to a particular subject will prevail over general provisions in the same or other statutes so far as there is a conflict.

3. Statutes. Where general and special provisions of statutes are in conflict, the general law yields to the special, without regard to priority of dates in enacting the same, and a special law will not be repealed by general provisions unless by express words or necessary implication.

4. Municipal Corporations. A provision of a home rule charter takes precedence over a conflicting state statute in instances of local municipal concern, but when the Legislature enacts a law affecting municipal affairs which is of statewide concern, the state law takes precedence over any municipal action taken under the home rule charter.

5. Legislature: Municipal Corporations. Whether or not an act of the Legislature pertains to a matter of local or statewide concern becomes a question for the courts when a conflict of authority arises.

6. Public Utilities: Municipal Corporations: Standing. A ratepayer does not have legal standing to attack a rate established by a legislative body, absent a showing of discrimination or a violation of statute, and solely on the basis that the ratepayer thinks the service should be provided more cheaply.

7. Standing. Before any party can invoke the jurisdiction of the court he must have standing to sue. He must have some real interest in the cause of action, or a legal or equitable right, title, or interest in the subject matter of the controversy.

8. Municipal Corporations: Actions. A person seeking to restrain the act of a municipal body must show some special injury peculiar to himself aside from and independent of the general injury to the public unless it involves an illegal expenditure of public funds or an increase in the burden of taxation.

9. Municipal Corporations: Actions. Ordinarily, a demand upon the responsible officers of the governmental subdivision or municipal corporation that they take action is necessary and a condition precedent to the right of a taxpayer to maintain an action for the recovery of funds on behalf of the governmental entity.

Larry W. Myers, J. Patrick Green, Omaha, Wallace Rudolph, Tacoma, Wash., and Robert C. Guinan of Guinan & Kolenda, Omaha, for appellant and cross-appellee.

Herbert M. Fitle, City Atty., and Timothy M. Kenny, Omaha, for appellee and cross-appellant City of Omaha.

Abrahams, Kaslow & Cassman, Omaha, and Dow, Lohnes & Albertson, Washington, D.C., for appellee and cross-appellant Cox Cable.

Heard before KRIVOSHA, C.J., and BOSLAUGH, McCOWN, WHITE, HASTINGS, and CAPORALE, JJ.

KRIVOSHA, Chief Justice.

The appellant, Harold Hall, commenced this action in the District Court for Douglas County, Nebraska, seeking declaratory relief pursuant to Neb.Rev.Stat. §§ 25-21,149 to 25-21,164 (Reissue 1979). The appellees, Cox Cable of Omaha, Inc. (Cox Cable), a Nebraska corporation granted a cable franchise by the City of Omaha, the City of Omaha, its mayor, and certain members of its city council, each filed a demurrer to Hall's second amended petition (petition). Appellees Green and Hassett, members of the Omaha city council, filed separate answers, generally admitting all of the allegations of Hall's petition.

On May 28, 1981, the trial court sustained the demurrers of the appellees Cox Cable and the City of Omaha and dismissed the petition. Having now reviewed the files in this case, we are of the opinion that the trial court was correct in sustaining the demurrers and dismissing the petition and, accordingly, affirm the judgment of the trial court.

Because this case was disposed of by the trial court on demurrers there is, of course, no evidence before this court. All that we have before us is the 22-page petition filed by Hall and the demurrers filed by Cox Cable and the City of Omaha.

We recognize that because the case below was decided on a demurrer we are required, in reviewing this case, to consider all proper allegations of fact as true. Paasch v. Brown, 193 Neb. 368, 227 N.W.2d 402 (1975); Hester v. Young, 154 Neb. 227, 47 N.W.2d 515 (1951). By the same token, however, only allegations of fact are to be so considered and the mere conclusions of the pleader are insufficient and are not admitted by the demurrer. A general demurrer admits only such facts as are well pleaded and does not admit mere conclusions of the pleader. See, Retail Section of Chamber of Commerce of Plattsmouth v. Kieck, 128 Neb. 13, 257 N.W. 493 (1934); Salsbury v. City of Lincoln, 117 Neb. 465, 220 N.W. 827 (1928). As we noted in Timmerman v. Hertz, 195 Neb. 237, 244-45, 238 N.W.2d 220, 225 (1976): "The pleading of legal conclusions is insufficient to raise an issue of fact."

Much of the 22 pages of Hall's petition is nothing more than unsupported conclusions and only tends to confuse the issues presented. The petition alleges as follows: Hall is a resident of the City of Omaha, the owner of a television set, desirous of obtaining the services of cable television, and a legally qualified elector of the City of Omaha entitled to vote in any municipal election in Omaha. After then alleging that this is a proper class action under Neb.Rev.Stat. § 25-319 (Reissue 1979) and is an action brought pursuant to the Uniform Declaratory Judgments Act, §§ 25-21,149 to 25-21,164, Hall identifies the various appellees, who are the City of Omaha, its mayor, and the members of the city council, as well as a private corporation duly organized under the laws of the State of Nebraska with its principal place of business in Omaha, Nebraska. The petition then alleges that Cox Cable is comprised of 80 percent ownership by Cox Cable Communications, Inc., of Atlanta, Georgia, and 20 percent divided among various residents of the Omaha area.

Further, the petition alleges facts concerning a contact made by one of the present stockholders of Cox Cable with Cox Cable of Atlanta. The petition alleges that the purpose of the contact was to interest Cox Cable of Atlanta in seeking a cable franchise in the City of Omaha; that as a result of the contact a preincorporation agreement for Cox Cable was executed by the Atlanta parent corporation and seven of the local shareholders. A copy of the agreement is attached to the petition and generally provides, among other matters, that after a period of 5 years from the City of Omaha's award of a cable franchise to Cox Cable, each of the local shareholders has the right to sell his or her shares of stock to Cox Cable of Atlanta in accordance with certain formulas set out in the agreement. The petition then, through a series of conclusions, alleges that the stockholders are not suited to be stockholders of a cable television corporation and have been obtained solely for the purpose of influencing the city council in granting the franchise. It is significant to note at this point that there are no allegations of fact in the petition of any wrongdoing by either the City of Omaha or any of its officials.

The petition then alleges, by way of conclusion, that Neb.Rev.Stat. § 18-2202 (Reissue 1977), concerning community antenna television service (CATV), was amended in 1979 to eliminate the requirement of local voter approval for the granting of a CATV franchise, and substituted in place of voter approval the right of the city council and the mayor to approve such franchise. The petition then details the action taken by the city council in seeking bids by interested cable television concerns pursuant to a cable ordinance previously adopted by the city council, a copy of which was attached to the petition. The petition further alleges that contrary to a "no lobby rule" adopted by the city council in connection with the cable franchise, certain city council members "did in fact receive direct and indirect contacts, favors and services from representatives of Cox Cable of Omaha; that the receipt by said Council members of such contacts, favors and services rendered it impossible for them to make an impartial decision on the merits regarding the award of a CATV franchise for Omaha." The petition alleges no facts regarding which members of the council were so affected, whether any of them responded to the contacts, or whether any acted in reliance of the contacts. This is but a sample of the manner in which the petition is generally conclusory in nature and therefore defective.

The petition further alleges that in violation of specific requirements in the city's request for proposals for CATV, the proposal of Cox Cable failed to attach certain documents and failed to fully disclose certain requested information, principally concerning the preincorporation agreement earlier executed by Cox Cable of Atlanta and the Omaha resident stockholders. The petition further alleges that Cox Cable made representations to the city with regard to the existence of a system which it calls "Indax" when in fact the system did not exist in any community in operable form. The petition then alleges that on August 19, 1980, the city council of Omaha passed and adopted ordinance No. 29254 granting to Cox Cable a nonexclusive CATV franchise which was thereafter signed by the mayor on behalf of the city. Under the ordinance, pursuant to Neb.Rev.Stat. § 18-2204 (Reissue 1977), the city is to receive a franchise fee of 5 percent of the revenues collected by Cox Cable.

The petition then, in conclusory form, alleges that ratepayers have a constitutional right to rates which are just and reasonable and that the franchise award...