Rock County v. Spire, No. 88-075

CourtSupreme Court of Nebraska
Writing for the CourtHASTINGS; CAPORALE
Citation235 Neb. 434,455 N.W.2d 763
PartiesROCK COUNTY, Nebraska, Appellant, v. Robert M. SPIRE, Attorney General of the State of Nebraska, et al., Appellees.
Decision Date25 May 1990
Docket NumberNo. 88-075

Page 763

455 N.W.2d 763
235 Neb. 434
ROCK COUNTY, Nebraska, Appellant,
v.
Robert M. SPIRE, Attorney General of the State of Nebraska, et al., Appellees.
No. 88-075.
Supreme Court of Nebraska.
May 25, 1990.

Page 764

Syllabus by the Court

1. Counties. A county possesses only a governmental character and, as such, acts purely as an agent of the State.

2. Counties. A county, being a mere instrumentality of the State for the convenient administration of government, is at all times, both as to its powers and its rights, subject to legislative control.

3. Counties: Property. The State has the right to 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.

4. Constitutional Law: Taxation. The application of the state constitutional provision prohibiting the State from levying a property tax for state purposes, [235 Neb. 435] Neb. Const. art. VIII, § 1A, hinges on a determination of whether the controlling and predominant purposes of a statute alleged to violate the provision are state purposes or local purposes; in making that determination, the historical and traditional taxing pattern is a factor to be considered.

5. Constitutional Law: Legislature. The Legislature cannot circumvent an express provision of the Constitution by doing indirectly what the Constitution prohibits it from doing directly.

6. Constitutional Law: Counties. A county, as a creature and political subdivision of the State, is neither a natural nor an artificial person and cannot invoke against the State the protection of U.S. Const. amend. XIV or of Neb. Const. art. I, §§ 3 and 21.

7. Counties: Property. Because a county is not a person and lacks authority to hold property which is not dedicated to a public use, the State may take the county's property without providing compensation.

Richard P. Nelson of Peterson Nelson Johanns Morris & Holdeman, Lincoln, for appellant.

Robert M. Spire, Atty. Gen., and Royce N. Harper, Lincoln, for appellees.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT and FAHRNBRUCH, JJ.

CAPORALE, Justice.

I. INTRODUCTION

In this declaratory judgment action brought pursuant to Neb.Rev.Stat. §§ 25-21, 149 et seq. (Reissue 1989), plaintiff-appellant, Rock County, sought to have Neb.Rev.Stat. § 68-718 (Reissue 1986), which constitutes a codified portion of 1982 Neb.Laws, L.B. 522, declared unconstitutional and unenforceable. The district court, judging the statute valid, granted summary judgment to the defendants-appellees, State of Nebraska; Robert M. Spire, Attorney General of the State of Nebraska; Kermit McMurry, director of the Nebraska Department of Social Services; and three employees of the Department of Social Services. Rock County appeals, asserting that § 68-718 impermissibly authorizes "the transfer of property purchased solely with county funds out of that county, and for the benefit of others outside that county"; violates Neb. Const. art. VIII, § 1A, [235 Neb. 436] which prohibits the State from levying a property tax for state purposes; and violates the county's due process rights under U.S. Const. amends. V and XIV and Neb. Const. art. I, § 3.

Page 765

II. FACTS

Prior to the Legislature's enactment of L.B. 522, which became operative July 1, 1983, the state social services system had been administered by the counties under the supervision of the State. Using moneys provided by local property tax revenues, each county contributed to certain of the programs, including having to contribute 20 percent of the moneys necessary for medical assistance, and each county paid certain administrative costs. As a result of the enactment of L.B. 522, the administration of social services programs became the sole responsibility of the State, to be supervised by its Department of Social Services, hereinafter referred to simply as Department. See Neb.Rev.Stat. § 68-717 (Supp.1989). After the enactment of L.B. 522, although the counties remained responsible for general assistance, they were relieved of many of the costs of administering social services programs, including no longer being required to contribute 20 percent of the moneys necessary for medical assistance. One intent of the Legislature in enacting L.B. 522 was to shift the method of funding the social services programs from the property tax to state sales and income tax revenues. Statement of Intent, Committee on Public Health and Welfare, 87th Leg., 2d Sess. (Mar. 17, 1981).

L.B. 522 also provided, as codified in § 68-718, for the transfer of "[a]ll furniture, equipment, books, files, records, and personnel utilized by the county divisions or boards of public welfare for the administration of public assistance programs" to the Department.

In March 1986, the Department notified Rock County that the Department office located in Bassett, Nebraska, a city within Rock County, was relocating to Ainsworth, Nebraska, a city within Brown County, and that pursuant to § 68-718 the furniture and equipment located in the Bassett office would be transferred to the Ainsworth office. The items of furniture and equipment in question were purchased by property tax moneys collected from residents of Rock County and had been used by [235 Neb. 437] Rock County for conducting the activities of the Rock County division of social services. The Department currently intends that the Ainsworth office will supervise the disbursement of social services moneys to those persons living in Brown, Keya Paha, and Rock Counties.

For two of the items, Rock County has been reimbursed at least in part by the State. The State reimbursed Rock County in the amount of $188 for all or part of the purchase price of an adding machine and $200 for all or part of the purchase price of a self-correcting electric typewriter.

III. ANALYSIS

No defendant having questioned the county's standing to challenge the authority of the Legislature to transfer property from one county to another, we undertake the analysis required by the county's assertions.

1. Authority of Legislature

The county's initial claim is that the Legislature's attempt, pursuant to § 68-718, to transfer its property to the Department without restrictions as to the manner or place of use exceeds the Legislature's authority to control county property. The county urges that property derived solely from the property taxes collected in a particular county must be used solely for the benefit of that county.

The seminal Nebraska case on this subject is State, ex rel. City of Omaha v. Board of County Commissioners, 109 Neb. 35, 189 N.W. 639 (1922). Therein, the city of Omaha brought a mandamus action to compel the county commissioners of Douglas County to furnish office rooms in the county courthouse for the use of Omaha's municipal courts pursuant to a statute requiring such in return for a yearly rental from the city of Omaha. The county commissioners argued that the statute "takes the property of Douglas county and appropriates it to the use of the city of Omaha without due process of law...." Id. at 40, 189 N.W. at 641. We upheld the statute against the constitutional challenge, reasoning:

Page 766

It must be remembered that a county does not possess the double governmental and private character that cities do. It is governmental only, and in that capacity acts [235 Neb. 438] purely as an agent of the state. The funds raised by taxation in the county are subject to the direction and control of the legislature for public use in that county, and the property of the county, acquired by funds raised through taxation, is property of which the state can direct the management and disposition, so long at least as it acts for the benefit of the public in the taxing district. [Citations omitted.]

... A county, "being a mere instrumentality of the state for the convenient administration of government, is at all times, both as to its powers and its rights, subject to legislative control. While it is no doubt true that the legislature has not such transcendent and absolute power over these bodies that it can apply property held by them to private purposes or to public purposes wholly disconnected with the community embraced within their limits, still it is likewise true that a purely public corporation, like a county, cannot acquire any vested interest which will preclude the legislature from directing the application of all its property and rights to the performance of those governmental functions which pertain to the community embraced within the corporation, and for the performance of which the corporation was created. If it were otherwise, counties, instead of being agencies of the state for administering the government, would be petty sovereignties, to impede and defeat the state with claims of local interest and authority." [Erskine v. Steele County, 87 F. 630 (C.C.D.N.D.1898) ].

The revenues of the county do not become the property of the county in the sense of private ownership, and the legislature has authority to prescribe the division and apportionment of money, raised by county taxation, between the county and a city within its limits. [Citation omitted.] It is true that the legislature could not divert funds raised by one district to the use of another district [citation omitted], since a tax levied for a public purpose must also be levied for the use of the district which is taxed. Should the legislature order that money be raised by one district and paid to another district, to be used for [235 Neb. 439] the sole benefit of that other district, that would be an exaction of money for the benefit of others than those who are taxed and clearly beyond what could be justified as taxation. [Citation omitted.]

The municipal courts of the city of Omaha are a branch of the judicial system of the state. [Citations omitted.] Their function is governmental, and the service they render is a public service. It cannot be said that...

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14 practice notes
  • Hoiengs v. County of Adams, No. S-92-777
    • United States
    • Supreme Court of Nebraska
    • May 13, 1994
    ...Franek v. Butler County, 127 Neb. 852, 257 N.W. 235 (1934). As such, it acts purely as an agent of the state. Rock Cty. v. Spire, 235 Neb. 434, 455 N.W.2d 763 (1990); Seward County Board of Commissioners v. City of Seward, 196 Neb. 266, 242 N.W.2d 849 (1976); State ex rel. Johnson v. County......
  • Sanitary & Improvement Dist. No. 67 of Sarpy Cnty. v. Neb. Dep't of Rds., S-20-659.
    • United States
    • Supreme Court of Nebraska
    • June 25, 2021
    ..., 281 Neb. 152, 794 N.W.2d 685 (2011) ; City of Lincoln v. Central Platte NRD , 263 Neb. 141, 638 N.W.2d 839 (2002) ; Rock Cty. v. Spire , 235 Neb. 434, 455 N.W.2d 763 (1990) ; Saunders Cty. v. Metropolitan Utilities Dist.-A , 11 Neb. App. 138, 645 N.W.2d 805 (2002) ; Dodge Cty. Bd. v. Nebr......
  • Sanitary & Improvement Dist. No. 67 of Sarpy Cnty. v. Neb. Dep't of Roads, No. S-20-659.
    • United States
    • Supreme Court of Nebraska
    • June 25, 2021
    ...Ofc., 281 Neb. 152, 794 N.W.2d 685 (2011); City of Lincoln v. Central Platte NRD, 263 Neb. 141, 638 N.W.2d 839 (2002); Rock Cty. v. Spire, 235 Neb. 434, 455 N.W.2d 763 (1990); Saunders Cty. v. Metropolitan Utilities Dist.-A, 11 Neb. App. 138, 645 N.W.2d 805 (2002); Dodge Cty. Bd. v. Nebrask......
  • West Orange-Cove Consol. I.S.D. v. Alanis, No. 02-0427.
    • United States
    • Supreme Court of Texas
    • May 29, 2003
    ...express provision of the Constitution by doing indirectly what the Constitution prohibits it from doing directly." Rock County v. Spire, 235 Neb. 434, 455 N.W.2d 763, 770 The Florida Constitution provides that "[n]o state ad valorem taxes shall be levied upon real estate or tangible persona......
  • Request a trial to view additional results
14 cases
  • Hoiengs v. County of Adams, No. S-92-777
    • United States
    • Supreme Court of Nebraska
    • May 13, 1994
    ...Franek v. Butler County, 127 Neb. 852, 257 N.W. 235 (1934). As such, it acts purely as an agent of the state. Rock Cty. v. Spire, 235 Neb. 434, 455 N.W.2d 763 (1990); Seward County Board of Commissioners v. City of Seward, 196 Neb. 266, 242 N.W.2d 849 (1976); State ex rel. Johnson v. County......
  • Sanitary & Improvement Dist. No. 67 of Sarpy Cnty. v. Neb. Dep't of Rds., S-20-659.
    • United States
    • Supreme Court of Nebraska
    • June 25, 2021
    ..., 281 Neb. 152, 794 N.W.2d 685 (2011) ; City of Lincoln v. Central Platte NRD , 263 Neb. 141, 638 N.W.2d 839 (2002) ; Rock Cty. v. Spire , 235 Neb. 434, 455 N.W.2d 763 (1990) ; Saunders Cty. v. Metropolitan Utilities Dist.-A , 11 Neb. App. 138, 645 N.W.2d 805 (2002) ; Dodge Cty. Bd. v. Nebr......
  • Sanitary & Improvement Dist. No. 67 of Sarpy Cnty. v. Neb. Dep't of Roads, No. S-20-659.
    • United States
    • Supreme Court of Nebraska
    • June 25, 2021
    ...Ofc., 281 Neb. 152, 794 N.W.2d 685 (2011); City of Lincoln v. Central Platte NRD, 263 Neb. 141, 638 N.W.2d 839 (2002); Rock Cty. v. Spire, 235 Neb. 434, 455 N.W.2d 763 (1990); Saunders Cty. v. Metropolitan Utilities Dist.-A, 11 Neb. App. 138, 645 N.W.2d 805 (2002); Dodge Cty. Bd. v. Nebrask......
  • West Orange-Cove Consol. I.S.D. v. Alanis, No. 02-0427.
    • United States
    • Supreme Court of Texas
    • May 29, 2003
    ...express provision of the Constitution by doing indirectly what the Constitution prohibits it from doing directly." Rock County v. Spire, 235 Neb. 434, 455 N.W.2d 763, 770 The Florida Constitution provides that "[n]o state ad valorem taxes shall be levied upon real estate or tangible persona......
  • Request a trial to view additional results

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