Nickel v. School Bd. of Axtell, s. 33415

• Court: Supreme Court of Nebraska
• Citation: 157 Neb. 813,61 N.W.2d 566
• Docket Number: Nos. 33415,33416,s. 33415
• Parties: NICKEL et al. v. SCHOOL BOARD OF AXTELL et al. PORTER et al. v. SCHOOL BOARD OF AXTELL et al.
• Decision Date: 18 December 1953

Page 566

61 N.W.2d 566

157 Neb. 813

NICKEL et al. v. SCHOOL BOARD OF AXTELL et al.

PORTER et al. v. SCHOOL BOARD OF AXTELL et al.

Nos. 33415, 33416.

Supreme Court of Nebraska.

Dec. 18, 1953.

Syllabus by the Court.

1. Quo warranto is employed only to test the actual right to an office or franchise. It can afford no relief for official misconduct or be used to test the legality of the official action of public or corporate officers.

2. The Legislature may not delegate to private individuals either legislative or judicial functions.

3. The fixing of boundaries of a political subdivision of a state into counties or districts for public purposes is a legislative function.

4. The Legislature may authorize the organization of districts for public purposes by other governmental bodies, and the proceeding may be proposed or initiated by private individuals.

5. Where it is authorized to be initiated by private individuals there must be some provision for determining whether the particular district is for the public health, convenience, or welfare, and a means by which an aggrieved property owner, whose property is injuriously affected, may have his rights judicially determined.

6. In those instances in which the Legislature may delegate authority, it may place upon the authority so granted such restrictions and limitations as it chooses. It may also prescribe the manner and circumstances of the exercise of such power.

7. Where financial burdens are necessarily imposed on property owners by an exercise of judicial power purusant to specific terms of a statute due process of law requires notice and an opportunity to be heard.

8. Questions of public policy, convenience, and welfare, as related to the creation of municipal corporations, such as counties, cities, villages, school districts, or other subdivisions, or any change in the boundaries thereof, are, in the first instance, of purely legislative cognizance and, when delegated to any public body having legislative power, any action in regard thereto does not come within the due process clause of either the state or federal Constitutions.

9. But when, as a condition to their creation or change, the public body to which such authority is delegated must find certain facts to exist upon which the Legislature has said depends its authority to declare such subdivision, or any change therein, to exist then the questions presented are of a quasi-judicial character. In such cases a hearing must be had to determine if such facts exist and proper notice thereof must be provided for and given to all parties interested therein.

10. In general, a school district or other local school organization must be so formed or laid out as to afford to all the children within its boundaries an opportunity to enjoy with reasonable facility the benefits of the school; but every reasonable presumption is to be indulged in favor of a district as created and laid out and equal convenience to all the children is not essential, since it is impossible to prevent varying degrees of convenience or inconvenience to children living in different parts of any district.

11. The doctrine of estoppel may be invoked against a municipal corporation where there have been positive acts by the municipal officers which may have induced the action of a party and where it would be inequitable to permit the corporation to stultify itself by retracting what its officers had done.

Dryden, Jensen & Dier, Kearney, for appellants.

William H. Meier, Charles A. Chappell, Minden, for appellees.

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

WENKE, Justice.

These actions were originally instituted in the district court for Kearney County by the appellants George C. Nickel, Jeannette Nickel, W. H. Porter, and Doris F. Porter. Appellants thereby sought to enjoin certain officials, whose duty it was to do so, from assessing and levying a tax against their lands located in school district R-1 for the support thereof. This district had been established under the Reorganization of School Districts Act passed by the 1949 Legislature. See Laws of Nebraska, 1949, c. 249, p. 673. The claimed right to this relief is based on the contention that the Reorganization of School Districts Act is unconstitutional or, if not unconstitutional, that the acts of the Kearney County Reorganization Committee in establishing the district were improper and, because thereof, school district R-1 should be declared void. Additional relief prayed for will not be set forth as it becomes unimportant in view of what is hereinafter held. Since both actions raise identical issues the two causes were, in the district court, consolidated for the purpose of trial. The trial court, after a hearing, dismissed both causes of action. The appellants filed separate motions for new trial and have separately appealed from the overruling thereof. We permitted a consolidation here for the purpose of having only one bill of exceptions, brief, and oral argument. Since the issues are the same in both cases we will write but one opinion and consolidate the two appeals for that purpose.

The record shows school district R-1, which includes the village of Axtell, was organized pursuant to and in accordance with the provisions of the Reorganization of School Districts Act, which we will hereinafter refer to as the Act. This Act is set out in R.R.S.1943 as sections 79-426.01 to 79-426.19, inclusive. We will, when referring thereto, do so by section numbers of the original Act. We will not set out the Act in full nor recite all the evidence in detail but will do so only to the extent it is deemed necessary in order to properly discuss the issues raised.

Appellees raise a question as to whether or not injunction is available to appellants in this type of action. This contention is made on the ground that quo warranto provides an adequate remedy at law.

In Osborn v. Village of Oakland, 49 Neb. 340, 68 N.W. 506, we said: 'It is a general rule, supported by the decisions of this and other states, that equity will not grant a party relief by injunction, where he has a plain and adequate remedy at law. It is likewise a well-established doctrine in this country that quo warranto is the proper remedy to inquire whether a municipal corporation was legally created, as well as to oust persons exercising the privileges and powers of corporate officers when the municipal corporation has no legal existence.'

However, in State v. Scott, 70 Neb. 681, 97 N.W. 1021, 1022, we said: 'The original writ of quo warranto, which has been largely superseded by informations in the nature of quo warranto, was a high prerogative writ; and, like all other extraordinary processes, it generally would only lie when no other adequate remedy would afford the required relief. The rule appears to even go further with reference to quo warranto than with reference to extraordinary proceedings by injunction or mandamus; in the latter it being the rule that they may be invoked where there is no adequate remedy at law, but in quo warranto it is held that it will not lie where there is even an adequate remedy by bill in equity.'

In Schafersman v. School District No. 85, 120 Neb. 673, 234 N.W. 791, we held injunction to be a proper remedy to prevent a school district and its officers from assuming jurisdiction over, and taxing land in, another school district under an unconstitutional statute.

We said in State ex rel. Johnson v. Consumers Public Power Dist., 143 Neb. 753, 10 N.W.2d 784, 797, 152 A.L.R. 480: '* * * quo warranto is employed only to test the actual right to an office or franchise, and it can afford no relief for official misconduct or be used to test the legality of the official action of public or corporate officers. See, High, Extraordinary Remedies, 3d Ed., 573, § 618; State [ex rel. Good] v. Conklin, 127 Neb. 417, 255 N.W. 925; State [ex rel. Gantz] v. Drainage District, supra (100 Neb. 625, 160 N.W. 997); State v. Scott, supra (70 Neb. 685, 100 N.W. 812).'

We think the latter has application to the relief here sought and that quo warranto could not afford to appellants all the relief they here seek.

Appellants contend the Act is unconstitutional because it permits complete freedom of choice by a county committee in the selection of the boundaries of any proposed district and thus permits it, by gerrymandering, to discriminate between persons and property.

Black's Law Dictionary, 4th Ed., p. 816, defines gerrymander as: 'A name given to the process of dividing a state or other territory into the authorized civil or political divisions, but with such a geographical arrangement as to accomplish a sinister or unlawful purpose, as, for instance, to secure a majority for a given political party in district where the result would be otherwise if they were divided according to obvious natural lines, or to arrange school districts so that children of certain religions or nationalities shall be brought within the district and those of a different religion or nationality in another district.'

We said in Elliott v. Wille, on rehearing, 112 Neb. 78, 86, 200 N.W. 347, 348: '* * * in determining whether any particular legislation which authorizes the creation of such a district is valid, it is proper to examine and ascertain what may be done or accomplished under and pursuant to such statutory provisions.'

In Elliott v. Wille, supra, wherein the statute involved granted such unrestricted power to private individuals, we held, after discussion of the possibility of gerrymandering, that: 'The fixing of boundaries of a political subdivision of a state into counties or districts for public purposes is a legislative function. The Legislature may authorize the organization of districts for public purposes by other governmental bodies, and the proceeding may be proposed or initiated by private individuals. Where the latter course is pursued,...