Mollner v. City of Omaha

• Decision Date: 24 July 1959
• Docket Number: No. 34596,34596
• Citation: 169 Neb. 44,98 N.W.2d 33
• Parties: Bernard M. MOLLNER et al., Appellees, v. CITY OF OMAHA, a Municipal Corporation, et al., Appellants, James W. Pattavina et al., Interveners-Appellees.
• Court: Nebraska Supreme Court

Page 33

98 N.W.2d 33

169 Neb. 44

Bernard M. MOLLNER et al., Appellees, v. CITY OF OMAHA, a Municipal Corporation, et al., Appellants James W. Pattavina et al., Interveners-Appellees.

No. 34596.

Supreme Court of Nebraska.

July 24, 1959.

Syllabus by the Court

1. The purpose and effect of the home rule charter provisions of the Constitution are to render cities, entitled to the benefit of the provisions, as nearly independent as possible of state legislation.

2. Home rule charter cities as to all matters of strictly local concern operate free and independent of state legislation.

3. The right of a city to provide for a particular form of government in a home rule charter does not depend upon whether the Legislature by statutory enactment has authorized such form, nor is it subject to statutory conditions and limitations upon which the Legislature may have authorized a city to adopt it.

4. A city may include in its home rule charter any provision for its government that does not conflict with the Constitution or any general law of the state.

5. The exercise of the legislative power of a municipality is not always exclusive in the city council thereof. The electors of the city may be authorized to participate therein.

6. It was proper for the electorate of the city of Omaha to make designated and properly identified provisions of the 1922 home rule charter of the city part of the new 1956 home rule charter so that they would be applicable to and would control local affairs of the city as enacted ordinances of identical subject matter could have done until the designated provisions were superseded by ordinances of the city.

7. A vested right in or to a pension does not exist in the beneficiary until the event happens upon which the obligation to pay the pension depends.

8. A change in pension provisions prior to when the right thereto vests and becomes absolute does not impair any property right of the beneficiary of the pension and is not illegal.

Herbert M. Fitle, Bernard E. Vinardi, Irving B. Epstein, Frederick A. Brown, Donald H. Erickson, Benjamin M. Wall, Edward M. Stein, Omaha, for appellants.

Theodore L. Richling, Omaha, for Mollner.

Webb, Kelley, Green & Byam, Omaha, for Pattavina.

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

BOSLAUGH, Justice.

The city of Omaha, a metropolitan city, by a majority vote of the electorate of the city adopted a home rule charter on July 18, 1922, as authorized by Article XI of the Constitution of Nebraska. It, as originally adopted, consisted of the provisions of the legislation of 1921 to incorporate metropolitan cities and to provide for the government, powers, and duties of cities of that class. Laws 1921, c. 116, p. 397. The city of Omaha has from the effective date of that charter operated as a home rule city. The city of Omaha was, as to local affairs, governed by the 1922 charter until it was amended and thereafter as it was amended from time to time until a new home rule charter, adopted by the electorate of the city of Omaha on November 6, 1956, became effective. The former will be referred to as the 1922 charter, the latter as the 1956 charter, and the city of Omaha will be designated the city.

Section 8.20 of the 1956 charter has three parts. The first consists of the following: '(1) The respective provisions of the following sections of the Omaha Home Rule Charter of 1922, as amended, to the extent that such provisions are not inconsistent with the provisions of this charter, shall be in full force and effect in like manner as ordinances until superseded in whole or in part, respectively, by ordinances which the Council may and is hereby authorized to enact: * * *.' That is followed by a list of numbered sections of articles identified by Roman numerals and following each section listed is a summary of the subject of it. The second states: '(2) The following sections of the Omaha Home Rule Charter of 1922, as amended, are hereby expressly repealed: * * *.' That is followed by a list of numbered sections of articles identified by Roman numerals and following each section listed is a summary of the subject of it. The third declares: '(3) The following sections of the Omaha Home Rule Charter of 1922, as amended, all of which derive their force and effect both from the fact that they are laws of the State of Nebraska and provisions of the Omaha Home Rule Charter of 1922, as amended, shall not in the future have force and effect as charter provisions: * * *.' That is followed by a list of numbered sections of articles identified by Roman numerals and following each section listed is a summary of the subject of it.

The plaintiffs in the district court will be herein called appellees. The interveners will be identified herein as they were in the trial court. The city and its officers will be herein designated appellants.

The validity of the entire 1956 charter was not an issue and was not considered or decided by the trial court. That was the finding and decision of that court and there is no cross-appeal. The validity or legal effect of subsection (1) of section 8.20 of the 1956 charter was and is an issue in this litigation. The trial court found: 'THAT by Section 8.20(1) of the Home Rule Charter of the City of Omaha, 1956, the electorate of Omaha retained certain specified Articles and Sections of the Omaha Home Rule Charter of 1922, as amended; that said Articles and Sections were retained as provisions of the Charter and not as Ordinances; that if an attempt was made in Sections 8.20(1) of the Home Rule Charter of the City of Omaha, 1956, to repeal certain provisions of the existing Charter and at the same time to re-enact these provisions as Ordinances, such was and is not legal or valid; that the attempt to authorize the City Council of Omaha to supersede by Ordinance any Charter provisions is illegal, ineffective and void; that, therefore, the provisions for compulsory retirement of city employees included in Ordinance No. 19728, which are inconcistent with the provisions of the Home Rule Charter of the City of Omaha, 1956, or with the Articles and Sections of the Omaha Home Rule Charter of 1922, as amended, which are retained, are invalid.'

The conclusion of the trial court on this part of the case was that by section 8.20(1) of the 1956 charter the electorate of the city retained the therein specified sections of the 1922 charter, as amended, as provisions of the existing charter and not as ordinances. The city council was permanently enjoined from attempting to supersede the sections or any of them in whole or in part, respectively, by ordinances, and appellants were enjoined from attempting to supersede or modify the provisions for compulsory retirement by other than procedures for proper amendment of the charter of the city by the electorate thereof.

The problem on this phase of the case concerns the authority of the electorate of Omaha to make designated and properly identified provisions of a prior home rule charter of the city a part of a new home rule charter of the city so that they would be applicable to and govern and control local affairs of the city as duly enacted ordinances containing the identical subject matter as the designated provisions could have done until the designated provisions were superseded by ordinances of the city which the council of the city was by the charter authorized to enact. A consideration of the stated problem invites a review of the purpose, nature, scope, permissible contents, and limitations of a home rule charter. The authority for home rule charters of cities is contained in sections 2 to 5, inclusive, of Article XI of the Constitution of the state. Section 2, adopted in 1912, includes the following: 'Any city having a population of more than five thousand (5000) inhabitants may frame a charter for its own government, consistent with and subject to the constitution and laws of this state, by causing a convention of fifteen freeholders, who shall have been for at least five years qualified electors thereof, to be elected by the qualified voters of said city * * *, whose duty it shall be * * * to prepare and propose a charter for such city, which charter, when completed, with a prefatory synopsis, shall be signed by the officers and members of the convention, or a majority thereof, and delivered to the clerk of said city, who shall publish the same in full * * *.' Section 5, adopted in 1920, contains this: 'The charter of any city having a population of more than one hundred thousand inhabitants may be adopted as the home rule charter of such city by a majority vote of qualified electors of such city voting upon the question, * * * subject to the Constitution and laws of the state.'

State ex rel. Fischer v. City of Lincoln, 137 Neb. 97, 288 N.W. 499, 501, contains the following: 'The purpose of section 2, art. XI of the Constitution of Nebraska, providing that any city with more than 5,000 inhabitants 'may frame a charter for its own government, consistent with and subject to the constitution and laws of this state,' was to render such cities as nearly independent as possible to state legislation. * * * Liberal judicial construction has encouraged this salutary assumption by municipalities of the powers and responsibilities of local self-government. * * * Recurrently we discover that democracy is only the hearth-shadow of local self-government and try to preserve the crackle of its flame. * * * The extent of the powers which may be incorporated in a home rule charter was defined in Consumers' Coal Co. v. City of Lincoln, supra (109 Neb. 51, 189 N.W. 646), as follows: 'We hold that the city may by its charter under the constitution provide for the exercise by the council of every power connected with the proper and efficient government of the municipality, including those powers so connected, which might lawfully be delegated to it by the...