Metropolitan Utilities Dist. v. City of Omaha
| Decision Date | 30 April 1924 |
| Docket Number | No. 23252.,23252. |
| Parties | METROPOLITAN UTILITIES DISTRICT v. CITY OF OMAHA. |
| Court | Nebraska Supreme Court |
METROPOLITAN UTILITIES DISTRICT
v.
CITY OF OMAHA.
No. 23252.
Supreme Court of Nebraska.
April 30, 1924.
A legislative act which creates a liability that can be discharged only from funds raised from taxation imposes a “tax,” within the meaning of that part of section 7, art. 8, of the Constitution, which provides: “The legislature shall not impose taxes upon municipal corporations, or the inhabitants or property thereof, for corporate purposes.”
The construction, operation or maintenance of water and gas plants by municipal corporations is not an exercise of governmental functions, but is rather in the nature of a private enterprise for the convenience, advantage or benefit of the municipality, its inhabitants and property owners.
The phrase, “for corporate purposes,” as used in section 7, art. 8, of the Constitution, is limited to those municipal activities designed, in the main, for the principal or exclusive convenience or benefit of the municipality, its inhabitants or property owners.
That part of section 3760, Comp. St. 1922, which imposes upon municipal corporations the burden of paying the cost of lowering gas and water mains and resetting hydrants, is in contravention of section 7, art. 8, of the Constitution.
Appeal from District Court, Douglas County; Wakeley, Judge.
Action by the Metropolitan Utilities District against the City of Omaha. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instructions.
W. C. Lambert, of Omaha, for appellant.
John L. Webster, of Omaha, for appellee.
Heard before MORRISSEY, C. J., LETTON, ROSE, DEAN, DAY, and GOOD, JJ., and REDICK, District Judge.
GOOD, J.
In this action Metropolitan Utilities District, plaintiff, seeks to recover from the city of Omaha, defendant, the cost of lowering gas and water mains and water hydrants in the city of Omaha. Defendant demurred to the petition on the ground that the statute, requiring the city to pay such cost, was in violation of section 7, art. 8 of the state Constitution. The demurrer was overruled and, defendant refusing to plead over, judgment was rendered for plaintiff. Defendant appeals.
In 1913 (Laws 1913, c. 143) the legislature created the “Metropolitan Water District” of the city of Omaha, and gave to it the “sole management and control of all waterworks property, * * * and all the powers that are now or may be granted to cities and villages by the general statutes of this state for the construction or extension of waterworks.” Rev. St. 1913, § 4244. Section 15 of the act provided that said Metropolitan Water District “shall also lower water mains and reset hydrants at their original locations whenever necessary: Provided that the cost thereof shall be paid by the respective municipalities whenever such pipe lowering and resetting of hydrants is made necessary because of a change in established street grades or curb lines.” Rev. St 1913, § 4257. At that time the Metropolitan Water District of Omaha included within its boundaries other cities and villages. The following clause, “cost thereof shall be paid by the respective municipalities,” in the statute above quoted, evidently had reference to the cities and villages in the district.
In 1919 (Laws 1919, c. 33) said section 15 was amended to read as follows:
“Said district shall also lower water mains and reset hydrants at their original locations whenever necessary. Provided, that the cost thereof shall be paid by the respective municipalities. Said district shall also afford free of charge water required for public use by each of said municipalities.” Comp. St. 1922, § 3760.
The legislature in 1919, by a new act (Laws 1919, c. 187), provided:
[198 N.W. 859]
“Whenever any metropolitan city included within a metropolitan water district shall acquire or take possession of a gas plant or electric plant supplying gas or electricity, as the case may be, * * * said gas plant or electric plant shall be immediately taken over by said metropolitan water district, and operated by the board of directors of said metropolitan water district.” Comp. St. 1922, § 3771.
In 1921 (Laws 1921, c. 111) the legislature changed the name of Metropolitan Water District to Metropolitan Utilities District, and further provided that said Metropolitan Utilities District should in all things and in...
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