Panebianco v. City of Omaha

• Decision Date: 03 June 1949
• Docket Number: 32617.
• Citation: 37 N.W.2d 731,151 Neb. 463
• Parties: PANEBIANCO v. CITY OF OMAHA et al.
• Court: Nebraska Supreme Court

37 N.W.2d 731

151 Neb. 463

PANEBIANCO v. CITY OF OMAHA et al.

No. 32617.

Supreme Court of Nebraska

June 3, 1949

Syllabus by the Court.

1. A party who stands on a general demurrer to a pleading thereby admits the material facts averred, and must take all the consequences which result from such admission.

2. Under police power a city may promulgate police regulations affecting and amounting to restrictions upon the use of property within certain areas of a city without such restrictions affecting all other areas if such regulations are reasonably in the interest of the public welfare.

3. In the absence of anything appearing to the contrary a presumption obtains that such restrictions are reasonably in the interest of the public welfare.

4. The presumption of reasonableness of a restriction in the interest of the public welfare does not obtain in the face of a factual declaration to the contrary and an admission of the declaration by demurrer.

5. A regulatory or restrictive ordinance subject to the objection that it is discriminatory as to classes of property and subject to the objection that it is not a reasonable exercise of the police power in the interest of the public welfare is violative of Article I, section 25, of the Constitution of the State of Nebraska.

Edward F. Fogarty, James M. Paxson, Edward Sklenicka, and Herbert M Fitle, Omaha, for appellants.

Fitzgerald & Smith, Omaha, for appellee.

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

YEAGER Justice.

This is a class action instituted by plaintiff in his own behalf and in behalf of all others in the city of Omaha, Nebraska similarly situated, against the said city of Omaha, its mayor, its city councilmen, its chief of police, and its city clerk to have declared null and void and of no effect certain provisions of the city ordinances and for an injunction against the enforcement of the provisions in question.

To the petition which was filed by plaintiff the defendants filed a general demurrer. The demurrer was overruled. The defendants elected to stand on their demurrer whereupon default was entered against them and a decree was rendered permanently enjoining them from in any manner enforcing, or attempting to enforce, the provisions of the ordinance concerning which complaint was made. From the decree the defendants have appealed.

The provisions of the ordinance having pertinence to the inquiry here are the following:

'* * * it shall be unlawful, on and after January 1, 1948, for any person or persons, firm, corporation, or association to * * * cut or bridge any curbing on or adjacent to any street, between Leavenworth Street and Cuming Street and 10th Street and 24th Street, all inclusive, for ingress or egress, * * * thereby rendering the street adjacent thereto unavailable for vehicular parking purpose, without first obtaining a permit in accordance with the terms and conditions hereinafter stated, * * *.'

'No permit shall be issued except to * * * the leaseholders, tenants or record owners of the land adjacent to the space sought to be used. No permit shall be issued until the same has been authorized by resolution of the City Council. Once a permit has been authorized by the City Council, same may be renewed, unless it has been revoked, or suspended, by paying the yearly permit fee.'

'For the purpose of defraying the cost to the City of regulating, supervising, policing, marking and maintaining the use or privilege of * * * curb cuts, in, along, or upon the streets, there is hereby imposed an annual fee in the amount of $1.00 per front foot so used. * * * Provided, * * * however, that no fee shall be charged for the first fifteen (15) feet that may be needed for a driveway as a means of ingress or egress to any property.'

'The City of Omaha reserves the right to refuse an application when, in the judgment of the City Council, such permit would create a traffic hazard or not be beneficial to the public welfare.'

'The City of Omaha reserves the right to cancel any permit any time.'

'Any person or persons, firm, corporation, or association violating any provisions of this Article, upon conviction thereof, shall be fined in any amount not to exceed Two Hundred Dollars ($200.00) and each day of violation shall constitute a separate offense.'

This ordinance purports to control within the area named also the use of space upon streets for loading and unloading but that subject is not embraced in the petition herein and the validity of the ordinance in that respect is not involved here.

The plaintiff has set forth in his petition that he is the owner of Lot 8, Block 2, Kountze and Ruth Addition to the city of Omaha, which property is located on the northwest corner of 17th and Jackson Streets in the city of Omaha, and within the area described in the ordinance; that on the property he operates a filling station, parking lot, and attendant and related activities and that in the conduct of his business for ingress and egress of customers he requires at least 100 feet of lowered curb; that unless restrained the defendants will enforce this ordinance against him to his damage and to the damage of his business; and that a large number of other persons within the described area are in a similar situation to that of the plaintiff.

He alleged that the ordinance is null, void, and invalid for the following reasons:

That the city council was without lawful power to require the plaintiff and the others similarly situated to do the things and make the payments required by the ordinance.

That the city council is without power to pass a valid ordinance levying a charge or tax upon persons or property within a part of the city of Omaha.

That the ordinance is violative of Article I, section 1, of the Constitution of Nebraska, in that it denies plaintiff the protection of his property.

That the ordinance is violative of Article I, section 3, of the Constitution of Nebraska, in that it deprives plaintiff of his property without due process of law.

That the ordinance is violative of Article I, section 21, of the Constitution of Nebraska, in that it takes plaintiff's property for a public use without just compensation.

That the ordinance is violative of Article I, section 25, of the Constitution of Nebraska, in that it discriminates against plaintiff in respect to ownership, possession, and enjoyment of his property.

That the ordinance is violative of Article VIII, section 1, of the Constitution of Nebraska, in that it does not purport to raise revenue as the Legislature directs and that it operates without uniformity and disproportionately upon property within the city.

That the ordinance is violative of the Fifth Amendment to the Constitution of the United States in that it deprives the plaintiff of property without due process of law and without just compensation.

That the ordinance is violative of the Fourteenth Amendment to the Constitution of the United States in that it abridges the privileges and immunities of plaintiff as a citizen of the United States and deprives him of his property without due process of law and also denies him equal protection of the laws.

The declarations of the plaintiff as contained in his petition are that the exactions of the defendants pursuant to the ordinance were...