Nebraska Mid-State Reclamation Dist. v. Hall County, MID-STATE

CourtSupreme Court of Nebraska
Writing for the CourtHeard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ., and KOKJER; CHAPPELL; In that case
Citation41 N.W.2d 397,152 Neb. 410
Decision Date24 February 1950
Docket NumberMID-STATE,No. 32702

Page 397

41 N.W.2d 397
152 Neb. 410
No. 32702.
Supreme Court of Nebraska.
Feb. 24, 1950.

Page 400

Syllabus by the Court

1. Proceedings for a declaratory judgment extend to the validity of a statute where there is a justiciable, determinable controversy between parties in respect to rights thereunder.

2. The provisions of sections 46-568 to 46-570, R.S.Supp., 1949, do not amend or repeal any provision of the Uniform Declaratory Judgments Act, but are simply part of a general act complete within itself which authorizes reclamation districts to prosecute a special confirmatory proceeding in the nature of an action in rem in the district court, there to be construed in the light of our holdings under the Uniform

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Declaratory Judgments Act, which does not exclude the awarding of further relief which is or could be claimed.

3. When questions are of common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.

4. When public officers are engaged in litigation to [152 Neb. 411] protect public rights, and their pleadings and procedure maintain public interest, private persons are not necessary parties because they do not have any such rights to protect which are not being protected.

5. In construing an act of the Legislature, all reasonable doubts must be resolved in favor of its constitutionality.

6. It is not within the province of courts to annul a legislative act or any part thereof unless its provisions so clearly contravene some provision of the fundamental law, or it is so clearly against public policy, that no other resort remains.

7. When a statute has been adopted from another state, ordinarily the construction given prior to its adoption by the courts of that state will be followed in this state, in the absence of any indication of a contrary intention on the part of the Legislature.

8. The foregoing rule is subject to the further qualification, however, that a construction of such a statute by the state from which it was adopted, is entitled to no greater consideration than previous decisions of this court, and will be rejected for reasons which would require the overruling thereof had it been first adopted in this state.

9. The provisions of Chapter 46, article 5, R.S.Supp., 1949, do not contravene Article III, section 14, Article II, section 1, Article V, section 1, Article III, section 1, Article I, section 24, or Article I, section 3, Constitution of Nebraska, or Article XIV, section 1, Constitution of the United States.

R. L. Haines, Kearney, R. Stanley Torpin, Central City, Donald H. Weaver, Grand Island, Sampson & Armatys, Central City, Van Pelt, Marti & O'Gara, Lincoln, Pierson & Scheele, Lincoln, for appellants.

Harry Grimminger, Grand Island, John P. Jensen, Kearney, Neighbors & Danielson, Scottsbluff, for appellees.

[152 Neb. 412] Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ., and KOKJER, District Judge.

CHAPPELL, Justice.

This action was brought by The Nebraska Mid-State Reclamation District, hereinafter generally designated as the district, and its directors, under the provisions of the Uniform Declaratory Judgments Act, particularly section 25-21,149, R.S.Supp., 1949, and section 25-21,150, R.R.S.1943, and under the provisions of the Reclamation Act, particularly sections 46-568 to 46-570, R.S.Supp., 1949.

The purpose of the action was to obtain an adjudication that the Reclamation Act, hereinafter generally designated as the act, Chapter 173, Laws of Nebraska, 1947, p. 523, now Chapter 46, article 5, R.S.Supp., 1949, was constitutional and valid, obtain judicial conformation of the legality and finality of organization of the district, and the validity of specified subsequent acts of the district and its directors, and also to have judicially determined the rights, status, duties, and other legal relations of the district, its officers and directors, the officers of defendant counties, and others under the act.

Defendants were Hall, Merrick, and Buffalo counties, and their respectively named county supervisors, treasurers, and county attorneys, the Attorney General, and State Engineer, together with Henry H. Falldorf, Warren Marsh, Harvey E. Glatfelter, and Leo Wyman, who each owned irrigable and non-irrigable rural farm lands, urban real estate, and tangible personal property within the boundaries of plaintiff district, respectively in Hall,

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Merrick, and Buffalo counties, and 'all persons having or claiming any interest in and to the organization and operation of the Nebraska Mid-State Reclamation District.'

Notice of the action was concededly published and posted as required by section 46-568, and process as well [152 Neb. 413] was duly served upon all named defendants. Defendant counties and their respective officers, the Attorney General, the State Engineer, Warren Marsh, and Leo Wyman, first demurred generally, or generally and for defect of parties defendant. However, their demurrers were overruled, whereupon such defendants filed answers preserving their demurrers, which answers were respectively traversed by plaintiff. All other defendants defaulted.

In that connection, defendant Hall County and its officers answered, substantially admitting that the district was legally organized and that the subsequent acts alleged by plaintiff were taken as alleged, and that same were legal and valid if the act had constitutional validity, which they denied. Such defendants also admitted that part of the tax moneys levied for the benefit of the district was being withheld by the county treasurer of Hall County pending judicial determination of constitutionality of the act. Defendants Merrick and Buffalo counties and their respective officers denied generally. Defendants Warren Marsh and Leo Wyman denied generally and also affirmatively alleged that the Reclamation Act was unconstitutional in several particulars. The Attorney General and State Engineer answered, affirmatively alleging that the act was constitutional and admitting that the district had been legally organized, but, for lack of information, denied generally the other allegations of plaintiffs' petition.

After a hearing whereat evidence was adduced the trial court found generally for plaintiffs and against defendants and all other parties having or claiming any interest in and to the organization and operation of the district. Its decree particularly found that the court had jurisdiction of the subject matter and persons of the named defendants, all owners of property in the district, and all parties having any interest in the district; that a justiciable controversy existed between the parties; that the district had been legally and finally organized and established as a public corporation and political [152 Neb. 414] subdivision of the state under the provisions of the act; that the taxes levied or caused to be levied by the district were legally and lawfully levied within the specific limits prescribed by the act; that the taxes levied against the property of defendants Warren Marsh and Leo Wyman were valid and that it was their duty to pay such taxes, and that it was the duty of all other taxpayers in said district on whose property taxes were similarly levied, to pay the same as provided by the act; and that it was the duty of the county officers to levy and collect such taxes. It specifically found and adjudged that the Reclamation Act was not unconstitutional, as claimed by defendants.

Motions of defendants for new trial were overruled, and they appealed, assigning substantially that the trial court erred in overruling their demurrers, and that the judgment was not sustained by the evidence but was contrary thereto, and contrary to law. We conclude that the assignments should not be sustained.

The evidence is not in conflict. In the light thereof, and admissions in the pleadings, it cannot be disputed that the district was legally and finally organized and established, from which no appeal was taken, and that the subsequent acts of the district and its officers and directors conformed with the provisions of the Reclamation Act, all of which were valid and binding, if the act was constitutional. The rights and duties of district officers, as well as those of defendant counties and others, are clearly defined in the act, but, of course, such rights and duties are thus created and imposed only if the act is constitutional.

Admittedly, the county treasurer of Hall County is withholding a part of the tax money levied and collected for the benefit of plaintiff district, pending decision of this case, and will continue to do so until a court order requires him to do otherwise. Also, without dispute, the county treasurer

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of Merrick County had difficulty with some taxpayers who protested the payment of taxes [152 Neb. 415] levied for plaintiff district, whereupon he informed the taxpayers of that county by public notice that if they would pay the taxes he would not pay any of such money to the district until validity of the district, its conduct, and constitutionality of the act, had been determined. He has not turned any of such moneys over to the district, and does not intend to do so until this case is decided, or a court order requires him to do so. He, as well as the county treasurers of Hall and Buffalo counties, received notices from the Union Pacific Railroad Company, demanding that taxes paid by it for district purposes be refunded, because the act was unconstitutional, and such taxes were illegal, unauthorized, and void.

Admittedly, the district includes both rural and urban real and personal tangible property located in parts of Buffalo, Hall, and Merrick counties, the value of which property aggregates millions of dollars....

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