May v. City of Kearney

• Decision Date: 23 January 1945
• Docket Number: s. 31837,31838.
• Parties: MAY et al. v. CITY OF KEARNEY et al. CONSUMERS PUBLIC POWER DIST. v. SAME.
• Court: Nebraska Supreme Court

17 N.W.2d 448

145 Neb. 475

MAY et al. v. CITY OF KEARNEY et al.

CONSUMERS PUBLIC POWER DIST. v. SAME.

Nos. 31837, 31838.

Supreme Court of Nebraska

January 23, 1945

[Copyrighted Material Omitted]

Syllabus by the Court.

1. Section 18-412, R.S.1943, authorizes any city or village to construct, purchase or otherwise acquire an electric light and power plant and real and personal property needed or useful in connection therewith and pay the cost thereof by the issue and sale of revenue bonds or debentures or by pledging and hypothecating the revenue and earnings of any such plant owned or to be owned by such city or village only if the proposition is first submitted to the electorate and approved by a majority voting thereon.

2. When bonds or other evidence of indebtedness are about to be issued by public officers illegally or without complying with the statute authorizing their issue equity has jurisdiction to grant an injunction; and where the law requires that the question shall be submitted to popular vote any issue of bonds without such a vote will be enjoined.

3. While ordinarily a municipality may not be estopped by the unauthorized conduct, representations, promises and pledges of its officers, it may within the limitation of its legal powers be estopped by its official acquiescence in and approval of acts originally unauthorized.

4. Ordinarily the doctrine of equitable estoppel cannot be invoked against a municipal corporation in the exercise of governmental functions but exceptions are made where right and justice so demand, particularly where the controversy is between one class of the public as against another class.

5. The doctrine of estoppel is commensurate with the thing represented and operates to place the party entitled to its benefits in the same position as if the thing represented were true.

6. The fact that a corporation is organized under a statute does not estop it to deny the constitutionality of an independent and separable provision of the same act, the elimination of which would leave the provisions under which the corporation was organized in full force and effect.

7. By enacting a statute containing provisions identical to those contained in a prior statute which have received a settled judicial interpretation by the court of last resort of the state where enacted, they will be presumed to have been retained with their previously established construction.

8. By the term 'court,' as the word is used in the Constitution, is meant a permanent organization for the administration of justice, and not those special tribunals provided for by law that are occasionally called into existence by particular exigencies, and that cease to exist with such exigencies.

9. In re Appraisement of Omaha Gas Plant, 102 Neb. 782, 169 N.W 725; City of Mitchell v. Western Public Service Co., 124 Neb. 248, 246 N.W. 484; and In re Application of City of Sidney, 144 Neb. 6, 12 N.W.2d 104, reaffirmed and adhered to.

10. An act of the legislature providing for the taking of private property for a public use under the power of eminent domain, which provides for notice and hearing on the question of just compensation before an impartial tribunal with a right of appeal to the courts limited to the record made before such tribunal, is not inimical to the due process clauses of the state and federal Constitutions in not affording a full and complete hearing before a judicial court.

11. Due process of law in its constitutional sense does not necessarily infer judicial process. It does not guarantee to a citizen any particular form or method of procedure.

12. The power of eminent domain is an attribute of sovereignty and inherently exists in the state, limited only by applicable provisions of the Constitution. Except as so limited the legislature may provide for its exercise in any manner it sees fit.

13. There is no constitutional limitation in this state on the right to take private property for public use under the power of eminent domain, except as to the right to just compensation. Consequently, the state, acting through the department or agency authorized to exert the legislative power, may proceed at will, and the extent, method and necessity of exercising the power may not be interfered with by the other departments of government.

14. An owner must be given his day in court on the question of just compensation by the statute authorizing the taking, but he has no right to and the statute need not provide a day in court on the question of the right of the state to take the property.

15. A condemnation statute enacted pursuant to the sovereign power of eminent domain does not offend against the due process clauses of the state and federal Constitutions in failing to provide for notice and hearing on the question of the right to or the regularity of the taking.

16. Where the owner desires to contest whether or not the use for which his property is to be taken is a public use, or whether the statutory proceedings under which it is taken have been followed, he may be left to other appropriate legal remedies in the same manner as if condemner proceeded without any statutory authorization, without offending due process.

Clarence A. Davis, of Lincoln, P. E. Boslaugh, of Hastings, and Wm. W. Redmond, of Lincoln, for appellants.

H. L. Blackledge and Kenneth H. Dryden, both of Kearney, for appellees.

Max Kier and A. A. Whitworth, both of Lincoln, amici curiae.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

CHAPPELL Justice.

Plaintiffs Charles E. May and Consumers Public Power District filed separate amended petitions in the district court for Buffalo county, Nebraska, to permanently enjoin defendant City of Kearney and its officials from issuing bonds for the purpose of raising money to tender an award made by a court of condemnation in proceedings brought by the city against plaintiff Consumers Public Power District as provided by section 70-650, R.S.1943, and chapter 19, art. 7, R.S.1943, wherein the city sought to acquire the electric light and power plant and distribution system serving the inhabitants of the city but belonging to the district. Plaintiff Charles E. May, a resident, legally qualified voter and taxpayer of the city of Kearney for more than ten years, and a user of electricity supplied by the district, and two other equally qualified persons petitioned for an injunction on behalf of themselves and all others similarly situated. The two cases were consolidated for trial in the district court and decision by this court. After hearing upon the merits the trial court denied an injunction and dismissed plaintiffs' separate amended petitions. Plaintiffs, Charles E. May, hereinafter called May, and Consumers Public Power District, hereinafter called Consumers, appeal to this court, contending: (1) That the bonds proposed to be issued and sold are invalid as in violation of section 18-412, R.S.1943, in that they pledge and hypothecate the revenue and earnings of the electric light and power plant without the approval of a majority of the electors voting upon the proposal submitted; (2) That by reason of certain representations, promises and pledges made by the mayor and city council to the electorate during the election upon the question of acquisition of the property the city is estopped to issue general obligation bonds as it claims the right to do under the provisions of section 19-704, R.S.1943; and (3) That chapter 19, art. 7, R.S.1943, and section 70-650, R.S.1943, in so far as it incorporates chapter 19, art. 7, R.S.1943, into its provisions, are unconstitutional for the reason that the act deprives the owner of his property without due process of law, there being no provision therein for notice and hearing upon the question of the legality of the preliminary steps taken by the city in the condemnation proceedings and there being no provision therein for a judicial hearing on the matter of just compensation. It is also claimed by plaintiffs that chapter 19, art. 7, R.S.1943, is unconstitutional in that it is class legislation, and violates the doctrine of the separation of powers. We conclude that plaintiffs' first two contentions have merit, but that the statutes involved are constitutional.

Preliminary to a decision of plaintiffs' first contention we find it necessary to recite some pertinent facts. The record discloses that on March 2, 1942, the city council passed an ordinance providing for submission to the qualified electors at the next regular city election the question whether the city of Kearney, which did not then own any electric light and power plant, should acquire the system owned by Consumers by use of procedure provided in chapter 19, art. 7, R.S.1943. The electorate of the city approved the proposal by a majority of 27 votes. The result was duly certified to this court and three district judges were appointed as a court of condemnation. The court of condemnation had a hearing and entered an award fixing the value of Consumers' property at $276,975. It is to tender this amount and secure possession of the system pending an appeal by Consumers that the city seeks to issue and sell bonds which are the subject of this suit. The value having been thus determined by the award of the court of condemnation the city council enacted an ordinance providing for submission to the electorate of the question whether the city should have the power and authority to issue and sell revenue bonds and use the proceeds therefrom for the purpose of paying the costs of acquiring the property. At the election thereon this proposition was defeated by a majority of 560 votes, after which the city council canvassed the election and declared the...