Petition of Consumers Public Power Dist.

• Decision Date: 18 October 1968
• Docket Number: No. 36897,36897
• Citation: 161 N.W.2d 869,183 Neb. 489
• Parties: Petition of CONSUMERS PUBLIC POWER DISTRICT etc. NORRIS PUBLIC POWER DISTRICT, a Public Corporation and Phil E. Buel, Appellants, v. STATE of Nebraska ex rel. Dan S. JONES, Jr., Director of the Department of Water Resources of the State of Nebraska, et al., Appellees.
• Court: Nebraska Supreme Court

Page 869

161 N.W.2d 869

183 Neb. 489

Petition of CONSUMERS PUBLIC POWER DISTRICT etc.

NORRIS PUBLIC POWER DISTRICT, a Public Corporation and Phil E. Buel, Appellants, v. STATE of Nebraska ex rel. Dan S. JONES, Jr., Director of the Department of Water Resources of the State of Nebraska, et al., Appellees.

No. 36897.

Supreme Court of Nebraska.

Oct. 18, 1968.

Syllabus by the Court

1. An appeal to the district court from a decision of the Department of Water Resources of this state is not commenced or perfected by filing within 30 days of the service of the final decision of the department a petition in the office of the district court, but the plaintiffs on appeal must also cause a summons to issue on the petition on appeal within 30 days as directed by subsection (2), section 84--917, R.R.S.1943.

2. A summons issued within 30 days and subsequently served thereafter is a valid service of summons under section 84--917, R.R.S.1943.

3. Summonses issued and served after the 30-day time to appeal do not meet the requirements of subsection (2), section 84--917, R.R.S.1943, and require a dismissal of the petition on appeal as not being in compliance with the statutory appeal procedure.

Crosby, Pansing, Guenzel & Binning, Lawrence L. Reger, Lincoln, for appellants.

Wilson, Barlow & Watson, Lincoln, for Consumers Public Power District.

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

CARTER, Justice.

On May 9, 1967, Consumers Public Power District filed its petition with the Department of Water Resources of the State of Nebraska requesting that the petition creating Consumers be amended by increasing its chartered territory in accordance with a resolution of its board of directors. On June 14, 1967, objections to the approval of the petition were filed by Norris Public Power District and Phil E. Buel. On June 15, 1967, a hearing was held on the petition before the Director of the Department of Water Resources. Norris, Buel, Platte Valley Public Power and Irrigation District, and the Nebraska Electric Generation and Transmission Co-op, Inc., appeared at the hearing as objectors. The proponent, Consumers, submitted evidence in support of its petition and an objector, Norris, submitted evidence in opposition to the approval of the proposed amendment to Consumers' chartered territory. The director subsequently entered his order approving the proposed amendment. Without dispute the time for appeal began to run on June 29, 1967.

On July 26, 1967, Norris and Buel filed their petition on appeal in the district court for Lancaster County. Plaintiffs on appeal named the following defendants: State of Nebraska ex rel. Dan S. Jones, Jr., Director of the Department of Water Resources of the State of Nebraska; Department of Water Resources of the State of Nebraska; Consumers Public Power District; and 26 other public power districts which are specifically named. No contention is made that all parties defendant are not necessary parties to the appeal.

The statutory provision for the review of an order of the Department of Water Resources provides as follows: 'Proceedings for review shall be instituted by filing a petition in the district court of the county where the action is taken within thirty days after the service of the final decision by the agency. All parties of record shall be made parties to the proceedings for review. Summons shall be served as in other actions except that a copy of the petition shall be served upon any such agency together with the summons. The court, in its discretion, may permit other interested persons to intervene.' Section 84--917(2), R.R.S.1943. The primary question before the court is whether or not the district court obtained jurisdiction of the appeal under the foregoing statute.

Service of summons was properly had on State of Nebraska ex rel. Dan S. Jones, Jr., Director of the Department of Water Resources, and the Department of Water Resources, and there is no issue regarding service of process as to them.

A praecipe for service of summons on Consumers was filed by plaintiff Norris on July 28, 1967. Summons was issued for Consumers on July 28, 1967. The summons was served on Consumers on July 31, 1967. It is plain that this summons was issued within the 30-day period in which the appeal could be perfected and actually served after such 30-day period. Such service was made within the 30-day period under the rule that a summons is served when it is issued within the prescribed time and subsequently delivered by the serving officer. Ballard v. Thompson, 40 Neb. 529, 58 N.W. 1133; Gorgen v. County of Nemaha, 174 Neb. 588, 118 N.W.2d 758.

Summonses were issued for the remaining 26 public power districts on August 1, 1967, and served between the dates of August 4, 1967, and August 17, 1967. Such summonses were neither issued nor served within 30 days after the time for appeal commenced. It is the contention of plaintiffs on appeal that such service of summons is not required within the 30-day appeal period under the quoted appeal provision of subsection (2), section 84--917, R.R.S.1943.

The case does not involve a situation where a...