Rowe v. Ray
| Decision Date | 09 July 1930 |
| Docket Number | 27520 |
| Parties | DAVE D. ROWE ET AL., APPELLANTS, v. JOHN I. RAY, COUNTY SUPERINTENDENT, ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dodge county: FREDERICK L. SPEAR JUDGE. Reversed, with directions.
REVERSED.
Syllabus by the Court.
The Legislature may not delegate legislative functions to private persons.
The second proviso in section 6582, Comp. St. 1922, chapter 88, Laws 1929, is invalid because it attempts to delegate legislative functions to private persons.
The board of education of school districts, created pursuant to the provisions of section 6582, Comp. St. 1922 is clothed with the power to bring actions to preserve and protect the property of the district from being unlawfully destroyed or diverted.
Appeal from District Court, Dodge County; Spear, Judge.
Action by Dave D. Rowe and others against John I. Ray, County Superintendent of Dodge County, wherein the School District of Fremont, in the County of Dodge, and others intervened. From a judgment denying an injunction, plaintiffs and certain interveners appeal.
Reversed and remanded, with directions.
Abbott, Dunlap & Corbett and J. F. Rohn, for appellants.
E. L. Mahlin, Courtright, Sidner, Lee & Gunderson and Fred H. Richards, Jr., contra.
C. E. Sandall, Reeder & Reeder, Charles F. Stroman and Patrick & Smith, amici curiae.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, THOMPSON, EBERLY and DAY, JJ.
This is an action to enjoin the county superintendent of Dodge county from erecting a new school district out of territory lying outside of the boundaries of the city of Fremont but within the school district of Fremont. The trial court denied the injunction. Plaintiffs and interveners, joining with them, have appealed.
Before proceeding to a discussion of the questions involved, we deem it proper to call attention to the provisions of section 8608, Comp. St. 1922, which require a plaintiff to state in his petition the facts constituting his cause of action in ordinary and concise language, without repetition, and to the provisions of section 8615, Comp. St. 1922, which make a like requirement of defendant in setting forth his defense. Counsel for each of the parties have ignored these provisions. Their pleadings teem with a mass of irrelevant and immaterial matter. Such violations of the statutory rules of pleading needlessly tax the time and patience of the court.
This appeal requires us to determine the constitutionality of the second proviso in section 6582, Comp. St. 1922, chapter 88, Laws 1929, and whether plaintiffs and interveners, joining with them, have a right in this proceeding to raise the constitutionality of such proviso.
Section 6582, Comp. St. 1922, prior to the amendment of 1929, provided for the organization of school districts, embraced within the corporate limits of cities and villages, together with territory outside of and adjacent to the boundaries of the city or village; provided that such district, when organized, should be a body corporate and possess the usual powers of a corporation for corporate purposes; that it might sue and be sued in its corporate name; and vested in such districts the title to the school buildings and other property, real and personal, owned by any school districts, within the corporate limits of such city or village. This section contained a proviso to the effect that any territory, not included in the corporate limits of the city or village, and containing territory or sufficient school children to constitute a school district, might, by petition, signed by a majority of the legal voters of said territory and by a majority of the board of education of the school district of the city or village, be by the county superintendent erected into a separate district. In 1929 the section was amended by adding another proviso in words following: "Provided, further, that whenever there shall be within such territory (meaning that part of the school district outside of the city or village) a tract comprising the equivalent of at least four sections of land contiguous, with an assessed valuation of not less than $ 200,000, and the original district shall, exclusive of such tract, contain not less than 2,000 inhabitants, and property of the assessed valuation of not less than $ 2,000,000, it shall be mandatory upon the county superintendent to erect such tract into a separate school district whenever there is filed for that purpose a petition signed by not less than three-fourths of the legal voters of such tract." Laws 1929, ch. 88.
Plaintiffs are the members of the board of education of the school district of Fremont in Dodge county. Certain resident taxpayers of such district intervened and joined with the plaintiffs in their demands, while other resident taxpayers of the territory, sought to be incorporated into a new district, intervened and joined in the defense. The county superintendent took a neutral position and was willing to do whatever the court decided was his legal duty.
The school district of Fremont (hereinafter called the parent district) includes within its boundaries the city of Fremont, and approximately 6,500 acres of land adjacent thereto and entirely surrounding the city. A petition was presented to the county superintendent, demanding that a tract, therein described and lying outside the boundaries of Fremont, and which contained more than the equivalent of four sections of land and having an assessed valuation of more than $ 200,000, be erected into a separate school district. It is conceded that the petition was signed by more than 75 per cent. of the legal voters residing on the tract described in the petition, and also that the parent district, exclusive of the territory sought to be erected into a new district, has an assessed valuation in excess of $ 2,000,000 and a population of more than 2,000. The petition presented to the county superintendent complies with all the terms and conditions of the proviso. If said proviso is valid legislation, then it was the mandatory duty of the county superintendent to erect the territory into a new district and to call and election for the selection of school officers in such district.
The constitutionality of the proviso is attacked on many grounds. We need consider but one, namely: Does the proviso attempt to confer legislative authority upon private individuals, contrary to the provisions of section 1, art. II, and of section 1, art. III, of the Constitution?
It is a rule of general recognition that the formation of municipal corporations, such as counties, cities, villages, school districts, or other subdivisions, and the fixing of the boundaries of such municipal corporations are legislative functions. Among the decisions of this court which recognize this rule are: City of Wahoo v. Dickinson, 23 Neb 426, 36 N.W. 813; State v. Dimond, 44 Neb. 154, 62 N.W. 498; City of Hastings v. Hansen, 44 Neb. 704, 63 N.W. 34; Bisenius...
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Neb. Const. art. II § II-1 Legislative, Executive, Judicial
...organization of new school districts was unconstitutional as attempting to delegate legislative functions to private persons. Rowe v. Ray, 120 Neb. 118, 231 N.W. 689 Duty placed on administrative board to provide form of insurance contract was not an unconstitutional delegation of legislati......