Norlanco, Inc. v. Madison County

• Decision Date: 13 November 1970
• Docket Number: No. 37541,37541
• Citation: 181 N.W.2d 119,186 Neb. 100
• Parties: NORLANCO, INC., a Nebraska Corporation et al., Appellants, v. COUNTY OF MADISON, Nebraska et al., Appellees.
• Court: Nebraska Supreme Court

Page 119

181 N.W.2d 119

186 Neb. 100

NORLANCO, INC., a Nebraska Corporation et al., Appellants, v. COUNTY OF MADISON, Nebraska et al., Appellees.

No. 37541.

Supreme Court of Nebraska.

Nov. 13, 1970.

Syllabus by the Court

1. A court will not hold a statute unconstitutional unless it is necessary to the proper disposition of the case.

2. The rule of res judicata is grounded, first, on a public policy and the necessity to terminate litigation and, second, the hardship on a person by being vexed more than once for the same cause.

3. The conclusiveness of a prior judgment precluding subsequent litigation of the same cause of action between the same parties is much broader in its application than a determination of the questions actually involved in the prior action; the conclusiveness of the judgment in such case extends not only to matters actually determined but also to other matters which properly could have been raised and determined and those which were necessarily adjudicated or necessarily implied in the final judgment, whether formally raised or not.

4. A judgment is an adjudication of all the matters that are essential to support it and every proposition assumed or decided by the court leading up to the final conclusion and on which such conclusion is based is as effectually passed upon as the ultimate question which is finally resolved.

5. A constitutional question must be raised at the earliest practical opportunity to raise it in a court of competent jurisdiction.

6. A statute is presumed to be constitutional and a judgment entered on an unconstitutional statute is not void, but is voidable only.

7. A judgment based on an unconstitutional statute is not for that reason subject to collateral attack.

8. A judgment in a court of competent jurisdiction which has become final, based on a statute, is as binding on the parties as any other judgment even though such statute was subsequently declared unconstitutional.

Hutton, Hutton & Garden, Norfolk, for appellants.

Jewell, Otte & Pollock, Milton D. Ellwood, Thomas E. Brogan, Norfolk, for appellees.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

CARTER, Justice.

Plaintiffs brought this action in the district court for Madison County praying for an injunction enjoining the defendants from assessing and levying municipal taxes on personalty and real estate allegedly annexed to the city of Norfolk and enjoining the collection of taxes already levied on the property of the plaintiffs on and after May 1, 1967. The trial court found that the annexation of plaintiffs' lands was valid and the taxes assessed and levied on plaintiffs' property were valid and enforcible, and dismissed the action. The plaintiffs have appealed.

On July 6, 1959, the city of Norfolk passed an ordinance annexing the property of the plaintiffs to the city which was duly published on July 10, 1959, in a local newspaper as provided by law. On July 20, 1960, the city filed an action in the district court praying for the annexation of the property to the city of Norfolk. On February 1, 1963, the case was tried and taken under advisement by the court. On July 17, 1963, the decree of the court was filed by which the property was decreed to be annexed to the city.

On April 28, 1967, the petition in the instant case was filed. It is alleged therein that the ordinance enacted by the city of Norfolk and the decree of July 17, 1963, are null and void for the reason that the statute purporting to authorize the ordinance and decree are unconstitutional and void.

In the annexation proceeding, the statute then in effect provided that the city council may by ordinance include therein all the property contiguous or adjacent containing not more than 5 acres which has been subdivided into parcels on authority of the owners and any tract in excess of 5 acres which is entirely surrounded by land already embraced within the corporate limits of the city and such council shall have power by ordinance to compel the laying out of streets and alleys. When the city desires to annex any territory it is entitled to annex, and shall have adopted an ordinance to that effect, it may thereupon present to the district court a petition praying for the annexation of such territory together with an accurate plat of the same as prescribed in the act. Upon a finding of the existence of the facts required by the statute, a decree shall be entered accordingly and a certified copy of the decree together with a plat of the territory shall be filed and recorded in the office of the county clerk or register of deeds and from the time of filing such decree and plat the territory therein described shall be included in and become a part of the city. Section 16--106, Comp.St. 1929; Laws 1929, c. 44, p. 189.

In an early case that reached this court, it was contended that the presentation of the petition for annexation to the district court as the statute provided was an attempt to transfer the legislative powers of the city council to the district court. This contention was not sustained under the statute then in existence. City of Wahoo v. Dickinson, 23 Neb. 426, 36 N.W. 813. The plaintiffs rely primarily upon Williams v. County of Buffalo, 181 Neb. 233, 147 N.W.2d 776, where the Wahoo case was discussed but not overruled.

In 1963, the Legislature amended the 1929 act, subsequently designated as sections 16--106, 16--107, 16--109, and 16--110, R.R.S.1943, to provide in part that an annexation ordinance duly enacted effectuating the extension of the corporate limits of the city shall be presumed legal as to territory where no appeal is taken and that any legal owner of territory annexed could appeal from the annexation ordinance to the district court, and provided the procedure for so doing. If the court found for the petitioner, a decree was to be entered accordingly and a certified copy of the decree filed in the office of the clerk of the city affected thereby. Laws 1963, c. 59, p. 249.

In Williams v. County of Buffalo, Supra, this court held Laws 1963, c. 59, p. 249, to be unconstitutional. The basic reason for the holding of unconstitutionality is set out in the following paragraph of that opinion: 'In the instant case, the appeal in effect authorizes the district court to consider 'the grounds for sustaining the ordinance and why the territory should not be eliminated from such annexation ordinance.' The statute further provides that the appeal shall be tried as a suit in equity de novo. This imposes upon the court the duty of serving as a superior legislative body when it requires the city to carry the burden of proof of showing valid reasons for annexing the property to the city. The sum and substance of the statute are that the property will be annexed if the court thinks best. The question as to whether or not the annexing of the property is a question of public policy is not in any sense a judicial question. In attempting to submit that question to the district court by an appeal from the passage of the ordinance, the Legislature has attempted to make it the means of transferring the legislative power to the district court. As the statute now stands, the court is required to determine what facts shall exist as a basis for the annexation of the property, a purely legislative function, and must be held invalid as an attempt to impose upon the courts the performance of nonjudicial duties, and an unauthorized delegation of legislative power. We hold that L.B. 338, is unconstitutional in that it is inhibited by Article II, section 1, of the Constitution of Nebraska.'

It is the contention of the plaintiffs that the statute under consideration in the Williams case is so similar that a holding of unconstitutionality is required as to the statute applicable to the annexation case here involved. But the statutes are not the same, and the one here applicable has been held constitutional in the Wahoo case while the subsequent act was held constitutionally invalid in the Williams case. We find no need to distinguish Wahoo and Williams for the reason that the case before us can be determined on nonconstitutional grounds.

At the time the annexation proceeding was commenced in 1959, the territory to be annexed included the lands involved in the injunction proceeding presently before the court belonging to Norlanco, Inc. Wheeler Lumber Bridge and Supply Company is the owner of personal property located on the lands of Norlanco, Inc. Its liability for municipal taxes assessed and levied by the city of Norfolk is dependent on the validity of the annexation of the lands of Norlanco, Inc., on which its personal property here involved is kept. The plaintiffs voluntarily paid the taxes on...