Metropolitan Utilities Dist. v. City of Omaha

• Citation: 171 Neb. 609,107 N.W.2d 397
• Decision Date: 27 January 1961
• Docket Number: No. 34913,34913
• Court: Supreme Court of Nebraska
• Parties: METROPOLITAN UTILITIES DISTRICT, a municipal corporation, Appellee, v. CITY OF OMAHA, a municipal corporation, Appellant.

Page 397

107 N.W.2d 397

171 Neb. 609

METROPOLITAN UTILITIES DISTRICT, a municipal corporation, Appellee, v. CITY OF OMAHA, a municipal corporation, Appellant.

No. 34913.

Supreme Court of Nebraska.

Jan. 27, 1961.

Syllabus by the Court.

1. A public sewer system is a public utility; a municipality may, by ordinance, fix and collect reasonable service charges for the use thereof upon a proper basis; and doing so relates to a matter of state-wide concern.

2. Where there is an actual controversy between the parties and justiciable issues are presented by all the interested parties, who are parties in the proceedings, the Uniform Declaratory Judgments Act is applicable.

3. Before a law can be determined unconstitutional, the express provision of our Constitution which the law contravenes must be pointed out.

4. Ordinances and statutes are presumed to be constitutional; unconstitutionality must be clearly established; and courts will not pass on a question of constitutionality unless it becomes necessary to do so.

5. Validity of statutes and ordinances is favored and when susceptible of two constructions the one holding such statute or ordinance valid will ordinarily be followed.

6. Municipal corporations are purely entities of legislative creation. They do not exist independent of some action of the legislative department of government bringing them into being. All the powers which they can possess are derived from the creator. Unlike natural persons they can exercise no power except such as has been expressly delegated to them, or such as may be inferred from some express delegated power essential to give effect to that power.

7. In case of doubt as to the meaning of a statute resort may be had to the title of the act as an aid to discover the legislative intent but by no means to enlarge the scope of the statute so as to include a subject not fairly expressed in the body of the act.

8. If words of a statute are of doubtful meaning they will be interpreted in a manner which will best effect the purposes of the enactment in preference to one which will defeat it. The intention of the Legislature, when ascertained, will prevail over the literal sense of the words used and this is especially true when the strict letter of the law would lead to injustice or absurdity. In interpreting a statute the legislative intent may be found from the reason of the enactment.

9. A public sewer system is a public utility the same as a water system and the Legislature would have the right to delegate to a municipal corporation the authority to manage and operate the same, or any phase thereof.

10. The power of classification rests with the Legislature and this power cannot be interfered with by the courts unless it is clearly apparent that the Legislature has by an artificial and baseless classification, attempted to avoid and violate the provisions of the Constitution prohibiting local and special legislation.

11. A regulation promulgated by municipal ordinance which provides that the water supply be shut off to residents delinquent in the payment of sewer charges is valid and not an unreasonable or arbitrary regulation.

Herbert M. Fitle, Bernard E. Vinardi, Irving B. Epstein, Frederick A. Brown, Benjamin M. Wall, Edward M. Stein, Steven J. Lustgarten, Omaha, for appellant.

Geo. C. Pardee, G. H. Seig, H. H. Foulks, Omaha, for appellee.

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

WENKE, Justice.

This action was instituted in the district court for Douglas County by the Metropolitan Utilities District, a municipal corporation to which we shall hereinafter refer as the district, against the City of Omaha, a municipal corporation to which we shall hereinafter refer as the city. The action is in the nature of a declaratory judgment suit and was brought for the purpose of determining the validity of a contract entered into between the district and the city whereby the district agreed to collect for and remit to the city the sewer service charges which the city, by ordinance, had imposed upon those using its sewer system and, if valid, to determine the rights, powers, duties, and obligations of the parties thereunder. The trial court held the legislative act, under and pursuant to which the parties had entered into the contract herein involved, unconstitutional in certain respects and, because other statutory requirements imposed upon the district had not been properly complied with, that the contract was inoperative and without force and effect. The city thereupon filed a motion for new trial and this appeal was taken from the overruling thereof.

The district has exclusive management and control of the water and gas systems serving the city and surrounding territory. The city is of the metropolitan class governed by a home rule charter adopted by its electorate on November 6, 1956. It has the exclusive management and control of the sewer system of the city. After the 1959 Legislature had adopted L.B. 295 on June 9, 1959, with an emergency clause, the district and city did, on March 2, 1960, enter into the agreement hereinbefore referred to. By its ordinance No. 21141, passed on December 29, 1959, the city fixed the rates which the users of its sewer system were to pay and which, under its contract with the city, which ordinance No. 21141 authorized, the district agreed to collect. The parties to the contract are unable to agree as to their respective rights, powers, duties, and liabilities thereunder and under the statutes of the state and ordinances of the city applicable thereto. In view of that fact they seek, as the contract provides they shall, to have the validity and enforcibility thereof judicially determined before they put the contract into effect by operating thereunder.

The action involves a question as to the constitutionality of a statute. Consequently, since declaratory relief is sought, copies of the proceedings were served on the Attorney General of the state. See section 25-21,159, R.R.S.1943. However, no appearance was made in the action by the Attorney General either in the court below or in this court.

A public sewer system is a public utility; a municipality may, by ordinance, fix and collect reasonable service charges for the use thereof upon a proper basis; and doing so relates to a matter of state-wide concern. Michelson v. City of Grand Island, 154 Neb. 654, 48 N.W.2d 769, 26 A.L.R.2d 1346.

Where, as here, there is an actual controversy between the parties and justiciable issues are presented by all the interested parties, who are parties in the proceedings, the Uniform Declaratory Judgments Act is applicable. See, Lynn v. Kearney County, 121 Neb. 122, 236 N.W. 192; Nebraska Mid-State Reclamation Dist. v. Hall County, 152 Neb. 410, 41 N.W.2d 397. The action being equitable in its nature we shall consider the cause de novo. State Farm Mutual Automobile Ins. Co. v. Kersey, 171 Neb. 212, 106 N.W.2d 31.

The questions raised involve the constitutionality of certain statutes; the construction thereof as well as of ordinance No. 21141 passed by the city under and pursuant thereto; the authority of the district and city thereunder; and the construction of such authority. In view thereof we shall set forth certain principles relating thereto before discussing separately the questions raised. Before doing so we will dispose of the city's contention that the question of constitutionality was not properly or sufficiently pleaded as an issue in view of our holding to the effect that: '* * * before a law can be determined unconstitutional, the express provision of our Constitution which that law contravenes must be pointed out.' State ex rel. Miller v. Bryant, 94 Neb. 754, 144 N.W. 804, 805. It is apparent that the constitutional provision relied upon by the district must have been pointed out to the court below, for it passed thereon, and it has been fully and sufficiently called to the attention of this court. We find no merit to this contention made by the city. The burden, in this respect, is upon the party so contending. Wagner v. City of Omaha, 156 Neb. 163, 55 N.W.2d 490.

Ordinances and statutes are presumed to be constitutional; unconstitutionality must be clearly established; and courts will not pass on a question of constitutionality unless it becomes necessary to do so. United Community Services v. The Omaha Nat. Bank, 162 Neb. 786, 77 N.W.2d 576; Wilson v. Marsh, 162 Neb. 237, 75 N.W.2d 723; Wagner v. City of Omaha, supra; Dorrance v. County of Douglas, 149 Neb. 685, 32 N.W.2d 202; State ex rel. Garton v. Fulton, 118 Neb. 400, 225 N.W. 28; Nebraska District of Evangelical Lutheran Synod v. McKelvie, 104 Neb. 93, 175 N.W. 531, 7 A.L.R. 1688; Davis v. State, 51 Neb. 301, 70 N.W. 984.

Validity of statutes and ordinances is favored and when susceptible of two constructions the one holding such statute or ordinance valid will ordinarily be followed. Starman v. Shirley, 162 Neb. 613, 76 N.W.2d 749. As therein held: 'When an ordinance or statute is susceptible of two constructions, under one of which it is clearly valid, while under the other its validity may be doubtful, that construction which makes sure its validity will ordinarily be given.'

'A district organized under the provisions of articles 10 and 11, ch. 14, Comp.St.1929 (now Chapter 14, articles 10 and 11, R.R.S.1943), is a public corporation empowered to perform functions usually performed by cities of the metropolitan class and is, in its broader sense, a municipal corporation.' Nelson-Johnston & Doudna v. Metropolitan Utilities Dist., 137 Neb. 871, 291 N.W. 558.

'Municipal corporations are purely entities of legislative creation. They do not exist independent of some action of the legislative department of government bringing them into being. All the powers which they can possess are derived from the creator. Unlike natural persons they can exercise no power except such...