Omaha Parking Authority v. City of Omaha, No. 33997

CourtSupreme Court of Nebraska
Writing for the CourtHeard before SIMMONS; CARTER
Citation77 N.W.2d 862,163 Neb. 97
Decision Date06 July 1956
Docket NumberNo. 33997
PartiesOMAHA PARKING AUTHORITY, Appellant, v. CITY OF OMAHA et al., Appellees.

Page 862

77 N.W.2d 862
163 Neb. 97
OMAHA PARKING AUTHORITY, Appellant,
v.
CITY OF OMAHA et al., Appellees.
No. 33997.
Supreme Court of Nebraska.
July 6, 1956.

Page 865

Syllabus by the Court.

1. The findings of the Legislature as set out in a declaration of policy contained in an act, while not absolutely controlling, are entitled to great weight in determining the constitutionality of the act.

2. For the purpose of legislation the Legislature may classify counties and cities when such classification rests upon some difference of situation or circumstance which, in reason, calls for distinctive legislation for the class. The class must have a substantial quality or attribute which requires legislation appropriate or necessary for the counties and cities in the class and which would be inappropriate or unnecessary for those without the class.

3. The Legislature may classify the subjects, persons, or objects as to which it legislates if such classification rests upon differences in situation or circumstances between the things dealt with in one class and those dealt with in another.

4. When an act does not purport to be amendatory, but is enacted as original and independent legislation, and is complete in itself, it is not within the constitutional requirement as to amendments, though it may, by implication, modify or repeal prior acts or parts thereof.

5. If by a fair and reasonable construction the title calls attention to the subject matter of a legislative bill, it may be said that the object is expressed in the title. It need not be a complete abstract of the contents of the bill.

6. A provision of a home rule charter takes precedence over a conflicting state statute in instances of local municipal concern. A state law affecting municipal affairs which is of state-wide concern takes precedence over any municipal action under a home rule charter.

7. The alleviation of congested streets and highways in a city of the metropolitan class by subway and off-street parking is a matter of state concern and not a matter of exclusive local concern.

[163 Neb. 98] 8. The providing of subway and off-street parking in metropolitan cities is a public function and the facilities provided are for a public use.

9. The state may direct the use, management, and disposition of county property so long as it is done for the benefit of the public in the taxing district.

10. The property of a city used in carrying out its governmental as distinguished from its proprietary functions is likewise subject to the control of the state.

11. The lease of public property to a private person may serve a public purpose. An act of the Legislature authorizing such a lease must provide controls for the manner and method of operation to insure its operation for the public good and not primarily for private gain or for the benefit of a privileged few.

12. A supervisory control of prices to be charged is necessary to a proper leasing of parking facilities under the Parking Authority Law.

Wells, Martin, Lane, Baird & Pedersen, Omaha, for appellant.

Edward F. Fogarty, Neal H. Hilmes, Bernard E. Vinardi, Irving B. Epstein, Herbert M. Fitle, Eugene F. Fitzgerald, August Ross and John C. Burke, Omaha, for appellees.

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

CARTER, Justice.

This is an action for a declaratory judgment to have the validity of the Parking Authority Law determined. The trial court

Page 866

found the law to be unconstitutional, and the plaintiff, Omaha Parking Authority, has appealed.

The Parking Authority Law consists of sections 14-1701 to 14-1725, R.S.Supp.1955. It is admitted by the pleadings that the Omaha Parking Authority has been duly established under the provisions of the act. The petition alleges that plaintiff made a request to the city of Omaha for the right to enter upon the streets surrounding the county courthouse site for the purpose of [163 Neb. 99] constructing parking facilities as provided by the law, and that a similar request was made to the county of Douglas to enter upon the courthouse site for the same purpose. The city of Omaha and the county of Douglas refused such requests on the ground that the Parking Authority Law was unconstitutional for the reasons set forth in the pleadings. The petition prays for a declaratory judgment finding the Parking Authority Law to be valid in all respects, for an order requiring the city of Omaha to grant the plaintiff the right to use the streets surrounding the courthouse site, and for an order requiring the county of Douglas to permit plaintiff to use the county courthouse site for the purpose of constructing parking facilities as authorized by the Parking Authority Law.

The city of Omaha contends that the Parking Authority Law is unconstitutional because it is special legislation in that it applies only to the city of Omaha and the county of Douglas. It is contended that the sole purpose of the act is the control of vehicular traffic which is a matter common to all cities and counties of the state. In this connection the act by its terms is made to apply only to cities of the metropolitan class. The term 'county' as used in the act means the county in which the parking authority is located and necessarily refers only to counties containing cities of the metropolitan class in which parking authorities have been established by the Governor in accordance with the terms of the Parking Authority Law. Ordinarily the Legislature may properly enact laws applicable to all cities of a given class, even though there is only one city within such class. It is true that the handling of traffic is a problem on all the highways of the state, but to assert that the problem is the same in the congested areas of a metropolitan city as it is in other parts of the state is to ignore plain facts. The declaration of legislative policy contained in the act states that the business districts of metropolitan cities have become congested by the [163 Neb. 100] great number of motor vehicles using the streets and the likelihood of a continued increase, that such traffic congestion has created a hazard to life and property of those using such streets, that there is insufficient space for the parking of motor vehicles on the streets, that off-street parking is required, and that the relieving of traffic congestion in the areas specified by the act is a matter of public welfare, of general public interest, and of state-wide concern in promoting the public safety and convenience. The findings of the Legislature as set forth in the declaration of policy contained in the act, while not absolutely controlling, are entitled to great weight. It is obvious that there is a direct relation between the size of a city and the amount of vehicular traffic using its streets; the larger the city the greater the traffic. It would seem that the Legislature could properly deal with the traffic problems of metropolitan cities without violating Article III, section 18, of the Constitution, prohibiting special legislation. It stands to reason that even if traffic problems existed in cities of other classifications, the remedy may be altogether different. The Legislature may classify the subjects, persons, or objects as to which it legislates if such classification rests upon differences in situation or circumstances between the things dealt with in one class and those dealt with in another. The controlling rule is stated in State ex rel. Cone v. Bauman, 120 Neb. 77, 231 N.W. 693, 695, as follows: 'The rule is well established that the Legislature may, for the purpose of legislating,

Page 867

classify persons, places, objects or subjects, but such classification must rest upon some difference in situation or circumstance which, in reason, calls for distinctive legislation for the class. The class must have a substantial quality or attribute which requires legislation appropriate or necessary for those in the class which would be inappropriate or unnecessary for those without the class.' See, also, Lennox v. Housing Authority of the City of Omaha, 137 Neb. 582, 290 N.W. 451, 291 N.W. 100. The legislation[163 Neb. 101] has general application to cities of the metropolitan class and it has none of the aspects of special legislation.

The city contends also that the Parking Authority Law is unconstitutional because it amends Chapter 14, R.R.S.1943, delegating the control of streets in metropolitan cities to such cities, but does not describe or repeal them. The section of the Constitution relied upon states in part: 'And no law shall be amended unless the new act contain the section or sections as amended and the section or sections so amended shall be repealed.' Art. III, section 14, Constitution. The plaintiff contends that the Parking Authority Law is complete in itself and is an independent act not subject to the cited constitutional prohibition. The rule is stated in Live Stock Nat. Bank v. Jackson, 137 Neb. 161, 288 N.W. 515, 518, as follows: 'The modern rule is: 'Where an act does not purport to be amendatory, but is enacted as original and independent legislation, and is complete in itself, it is not within the constitutional requirement as to amendments, though it may, by implication, modify or repeal prior acts or parts thereof.' 1 Lewis' Sutherland, Statutory Construction (2d ed.) 446, sec. 239.' See, also, Peterson v. Hancock, 155 Neb. 801, 54 N.W.2d 85; State ex rel. City of Columbus v. Price, 127 Neb. 132, 254 N.W. 889.

The Parking Authority Law deals with a new subject, complete in itself. It is original and independent legislation, and is not within the contemplation of the constitutional requirement as to amendments. There is no merit to the contention that the quoted portion of Article III, section 14, of the Constitution, was violated.

The city further urges that the title to the act is defective in that it makes no reference to...

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22 practice notes
  • Abboud v. Lakeview, Inc., No. 88-903
    • United States
    • Supreme Court of Nebraska
    • March 1, 1991
    ...over the course. The appellant attempts to overcome this problem by referring to our decision in Omaha Parking Authority v. City of Omaha, 163 Neb. 97, 77 N.W.2d 862 (1956), for the proposition that a public park leased to a private party may still be considered dedicated to the public as l......
  • Rock County v. Spire, No. 88-075
    • United States
    • Supreme Court of Nebraska
    • May 25, 1990
    ...divert taxes raised by one taxing district to the sole use and benefit of another district); Omaha Parking Authority v. City of Omaha, 163 Neb. 97, 77 N.W.2d 862 (1956) (State has right to direct the use, management, and disposition of county property so long as it is done for the benefit o......
  • Dwyer v. Omaha-Douglas Public Bldg. Commission, OMAHA-DOUGLAS
    • United States
    • Supreme Court of Nebraska
    • February 25, 1972
    ...[188 Neb. 47] Omaha which was adopted under the above constitutional provision. Appellee cites Omaha Parking Authority v. City of Omaha, 163 Neb. 97, 104, 77 N.W.2d 862: '. . . a provision of a home rule charter takes precedence over a conflicting state statute in instances of local municip......
  • Hall v. Cox Cable of Omaha, Inc., No. 44417
    • United States
    • Supreme Court of Nebraska
    • December 3, 1982
    ...takes precedence over any municipal action taken under the home rule charter.' Omaha [212 Neb. 895] Parking Authority v. City of Omaha, 163 Neb. 97, 104, 77 N.W.2d 862, 868 (1956)." In the Jacobberger case we further noted: " 'Whether or not an act of the legislature pertains to a......
  • Request a trial to view additional results
22 cases
  • Abboud v. Lakeview, Inc., No. 88-903
    • United States
    • Supreme Court of Nebraska
    • March 1, 1991
    ...over the course. The appellant attempts to overcome this problem by referring to our decision in Omaha Parking Authority v. City of Omaha, 163 Neb. 97, 77 N.W.2d 862 (1956), for the proposition that a public park leased to a private party may still be considered dedicated to the public as l......
  • Rock County v. Spire, No. 88-075
    • United States
    • Supreme Court of Nebraska
    • May 25, 1990
    ...divert taxes raised by one taxing district to the sole use and benefit of another district); Omaha Parking Authority v. City of Omaha, 163 Neb. 97, 77 N.W.2d 862 (1956) (State has right to direct the use, management, and disposition of county property so long as it is done for the benefit o......
  • Dwyer v. Omaha-Douglas Public Bldg. Commission, OMAHA-DOUGLAS
    • United States
    • Supreme Court of Nebraska
    • February 25, 1972
    ...[188 Neb. 47] Omaha which was adopted under the above constitutional provision. Appellee cites Omaha Parking Authority v. City of Omaha, 163 Neb. 97, 104, 77 N.W.2d 862: '. . . a provision of a home rule charter takes precedence over a conflicting state statute in instances of local municip......
  • Hall v. Cox Cable of Omaha, Inc., No. 44417
    • United States
    • Supreme Court of Nebraska
    • December 3, 1982
    ...takes precedence over any municipal action taken under the home rule charter.' Omaha [212 Neb. 895] Parking Authority v. City of Omaha, 163 Neb. 97, 104, 77 N.W.2d 862, 868 (1956)." In the Jacobberger case we further noted: " 'Whether or not an act of the legislature pertains to a......
  • Request a trial to view additional results

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