Michelson v. City of Grand Island, 32971

• Decision Date: 16 July 1951
• Docket Number: No. 32971,32971
• Citation: 26 A.L.R.2d 1346,154 Neb. 654,48 N.W.2d 769
• Parties: , 26 A.L.R.2d 1346 MICHELSON v. CITY OF GRAND ISLAND et al.
• Court: Nebraska Supreme Court

Page 769

48 N.W.2d 769

154 Neb. 654, 26 A.L.R.2d 1346

MICHELSON v. CITY OF GRAND ISLAND et al.

No. 32971.

Supreme Court of Nebraska.

July 16, 1951.

Syllabus by the Court.

1. Under the provisions of Article XI, section 2, of the Constitution, a home rule charter must be consistent with and subject to the Constitution and laws of this state.

2. Whether or not an act of the Legislature pertains to a matter of state-wide or strictly local concern becomes a question for the courts when a conflict of authority arises.

3. The health of the inhabitants of a city and the sanitary condition existing in any one city of the state are of vast importance to all the people of the state because of the danger through social and business relations with other parts of the state of spreading contagious and infectious diseases. The state has not delegated to the municipal authorities complete control over the health had sanitation of the municipalities' inhabitants.

4. The protection and preservation of public health and sanitation are of state-wide concern with respect to which the Legislature has jurisdiction.

5. When the Legislature has enacted a law affecting municipal affairs, which are also of state-wide concern, such law takes precedence over any provisions in a home rule charter and the provisions of the charter must yield.

6. Sections 18-501 to 18-508, R.S.1943, constitute an independent act providing legislation authorizing issuance of mortgage and revenue bonds which do not impose a general liability upon the municipality but are secured only by the property and revenues of the sewerage system which the act further authorizes may be constructed or extended, and provides that owners or occupants of premises shall be charged for the service, and to raise the money to retire the interest and principal of the revenue bonds.

7. The imposition of a rental charge for the use of a sewage disposal system is not an exercise of the taxing power, nor is it the levy of a special assessment.

8. The provision of a city ordinance for shutting off water furnished by the city to premises of the consumer failing to pay sewer service charges is not unconstitutional as depriving persons of property without due process of law, as where water and sewer services are so interlocked neither can be effective without the other.

9. 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, or in conflict with section 18-503, R.S.1943.

Grimminger & Abbott, Grand Island, for appellant.

Paul C. Holmberg, Harold A. Prince, both of Grand Island, for appellee.

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

MESSMORE, Justice.

The plaintiff, James A. Michelson a taxpayer of the city of Grand Island, brought this action in equity in the district court for Hall County (1) to enjoin the city and its officials from discontinuing the plaintiff's water service to his properties for his refusal to pay certain sewage service charges established by an ordinance of the city and its officials, (2) to have declared illegal and unconstitutional the provisions of ordinance No. 2289, as amended by ordinance No. 2317, and ordinance No. 2290, part of the laws of the city of Grand Island embodied in its home rule charter, and (3) to construe certain statutory provisions with reference to which the ordinances were enacted. Hearing was had to the court. The trial court entered judgment finding generally in favor of the defendants the city of Grand Island, Clarence W. Burdick, its light, water, ice, and sewer commissioner, and Kirkpatrick-Pettis Company, the purchaser of the bonds issued by the city pursuant to the ordinances, and against the plaintiff, that the petition of the plaintiff be dismissed, and assessed the costs of the action against the defendant city. Upon the overruling of the plaintiff's motion for new trial, the plaintiff perfected appeal to this court.

For convenience we will refer to appellant James A. Michelson as plaintiff and appellee as defendant, or city.

The city of Grand Island adopted a home rule charter in 1928, as provided for in Article XI, section 2, of the Constitution of this state. In Nagle v. City of Grand Island, 144 Neb. 67, 12 N.W.2d 540, the court said that such cities, in so acting under Article XI, section 2, of the Constitution, may provide for the exercise of every power, not contravening constitutional inhibitions, connected with a proper and efficient government of the municipality, but are subject to the general laws of the state, except as to municipal matters of strictly local concern.

In 1933, the Legislature passed Chapter 146, Laws 1933, page 561. This act is now found as sections 18-501 to and including section 18-508, R.S. 1943. We briefly summarize the following sections of the act.

Section 18-501, R.S. 1943, authorizes any city or village in this state to own, construct, equip, and operate either within or without the corporate limits of such municipality a sewerage system and plant or plants for the treatment, purification, and disposal in a sanitary manner, of the liquid and solid wastes, sewage, and night soil of such municipality or to extend or improve any existing sewerage system.

Section 18-502, R.S. 1943, provides, for the purpose heretofore set out, that a municipality may issue mortgage bonds therefor. Such mortgage bonds shall not impose any general liability upon the municipality but shall be secured only on the property and revenues as hereinafter provided of such utility including a franchise stating the terms upon which, in case of foreclosure, the purchaser may operate the same, which franchise shall in no case extend for a period of longer than 20 years from the date of the sale thereof on foreclosure. Such mortgage bonds shall be sold for not less than par and bear interest at a rate not to exceed 6 percent per annum. The amount of such mortgage bonds, either issued or outstanding, shall not be included in computing the maximum amount of bonds which the said municipality may be authorized to issue under its charter or any statute of this state.

Section 18-503, R.S.1943, provides that the governing body of such municipality may make all necessary rules and regulations governing the use, operation, and control of the sewerage system or disposal plant. The governing body may establish just and equitable rates or charges to be paid to it for the use of such disposal plant and sewerage system by each person, firm, or corporation whose premises are served thereby. If the service charge so established is not paid when due, such sum may be recovered by the municipality in an action of assumpsit, or it may be certified to the tax assessor and assessed against the premises served, and collected or returned in the same manner as other municipal taxes are certified, assessed, collected, and returned.

Section 18-504, R.S.1943, provides that bonds which are issued and secured by a mortgage on the utility, as provided in section 18-502, shall not be a general obligation of the municipality, but shall be paid only out of the revenues received from the service charges as provided in section 18-503, or from a sale of the property and franchises under a foreclosure of the mortgage. If a service rate is charged, to be paid as herein provided, such portion thereof as may be deemed sufficient shall be set aside as a sinking fund for the payment of the interest on said bonds, and the principal thereof at maturity.

Section 18-506, R.S.1943, authorizes a municipality to issue and sell the general obligation bonds of such maunicipality upon compliance with statutory and charter requirements with reference to the issuance of bonds.

Section 18-507, R.S.1943, provides, in part, whenever the governing body of any city extends or improves an existing sewerage system, upon approving plans and specifications thereof, it shall advertise for sealed bids a specified time in a legal newspaper published in the municipality, and the contract shall be awarded the lowest responsible bidder.

We deem it unnecessary to summarize the provisions of either sections 18-505 or 18-508, R.S.1943.

In the case of State ex rel. City of Columbus v. Price, 127 Neb. 132, 254 N.W. 889, 891, the act in question was before the court in a mandamus action to compel the Auditor of Public Accounts to register certain sewer bonds of the City of Columbus in the amount of $60,000. The act was at that time included in sections 18-1401 to 18-1408, C.S.Supp., 1933. This court held, after reviewing the title of the act, as follows: 'The title of * * * an independent act authorizing the construction of sewers and providing that owners or occupants of the premises shall be charged for the services, and to raise money * * *, is broad enough to include legislation authorizing issuance of mortgage and revenue bonds which do not impose a general liability upon the municipality but are secured only by the property and revenues of the sewerage system.' The court further said: 'The language in the title of chapter 146, Laws 1933, gave notice of a legislative purpose to provide authority for cities to build a different kind of sewerage system by the issuance of bonds to which the property and the revenues of the system were to be pledged, instead of general obligation bonds of the city.' The judgment in that case was reversed because of an omission in the bonds which failed to comply with section 16-721, Comp.St.1929, which has no bearing in the instant case. The case is cited to disclose the purpose of the act.

Apparently the original sewage disposal plant of the city was built in 1918, and an addition made thereto in 1928. The present plant was put in operation in 1930 or 1931. Due to the growth in population and the extensive use to which the...