Salsbury v. City of Lincoln

• Decision Date: 10 July 1928
• Docket Number: 26277
• Parties: HELEN E. SALSBURY ET AL., APPELLANTS, v. CITY OF LINCOLN ET AL., APPELLEES
• Court: Nebraska Supreme Court

220 N.W. 827

117 Neb. 465

HELEN E. SALSBURY ET AL., APPELLANTS, v. CITY OF LINCOLN ET AL., APPELLEES

No. 26277

Supreme Court of Nebraska

July 10, 1928

APPEAL from the district court for Lancaster county: MASON WHEELER JUDGE. Affirmed.

AFFIRMED.

Allen & Requartte and W. M. Elmen, for appellants.

C Petrus Peterson, Charles R. Wilke and R. A. Boehmer, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD and THOMPSON, JJ., and CHASE and REDICK, District Judges.

OPINION

CHASE, District Judge.

This is a suit in equity to restrain the city of Lincoln and its city commissioners from entering into a contract for the paving of the streets in paving district No. 765 in said city. To the petition a general demurrer was interposed which was sustained bye the trial court, whereupon the plaintiff elected to stand on the petition and the court entered judgment dismissing the suit. The action of the trial court therein is now presented in this court for review.

The record is brief, consisting only of the petition, demurrer and judgment. The petition is very lengthy, consisting of fifteen paragraphs, also consisting of exhibit A, being the ordinance declaring for the paving of said district; exhibit B, being a plat of the streets and highways upon which said proposed paving is to be laid; exhibit C, the plaintiff's objections before the city council to the letting of said contract; exhibit C-1, being the plaintiffs' protest filed with the city council against the creation of said paving district; exhibit D, being a petition to eliminate from said paving district the property owned by the plaintiffs; and exhibit E, being the resolution of the city council ordering said district paved.

From a careful reading of the petition and exhibits we reach the conclusion that the consideration of three propositions involved will successfully dispose of the entire case: First, the question as to which shall prevail where there is an inconsistency--the home rule charter of the city of Lincoln, or the legislative charter which existed prior to the adoption of the home rule charter. Second, as to whether or not courts can and will inquire into the legislative expediency and discretion of a city council acting within its authority as to matters of municipal legislation. Third, the effect of a general demurrer as to the admission of facts and conclusions appearing in the petition and the exhibits annexed thereto.

By this suit the plaintiffs seek by injunction to prevent the city council of Lincoln from establishing paving district No. 765 within the corporate limits of said city, and the paving of the streets within said districts. The record admits that the city of Lincoln is a city coming within the provisions of section 2, art. XI of the Constitution, which gives authority to cities of over 5,000 inhabitants to frame a charter for its own government consistent with and subject to the Constitution and laws of the state of Nebraska. This section of the Constitution in express terms provides that, when a city charter is adopted under its provisions, it shall then become the charter of the city adopting the same for the regulation and government thereof "and supersede any existing charter and all amendments thereof." This provision of the Constitution is self-executing. It is apparent that the framers thereof intended that a city having the required population could, independent of any legislative action, draft and adopt a charter under this provision, and when once adopted according to its provisions such charter shall be the law for the general regulation and control of all of its local municipal affairs. The plaintiffs contend that the general statutes of the state require city councils in establishing paving districts to include only intersecting streets, while the charter of the city of Lincoln, subsequently adopted under section 2, art. XI of the Constitution, permits the municipal authorities to include two or more connecting or intersecting streets; that in the creation of the paving district herein complained of there are no intersecting streets, and that the action of the city council is without authority because of that fact.

The rule adopted by this court concerning an inconsistency between legislative enactment and municipal charters is too well established to justify longer discussion. "The purpose of the constitutional provision (Const., sec. 2, art. XI) is to render cities independent of state legislation as to all subjects which are of strictly municipal concern; therefore, as to such matters general laws applicable to cities yield to the charter." Consumers Coal Co. v. City of Lincoln, 109 Neb. 51, 189 N.W. 643. See, also, Sandell v. City of Omaha, 115 Neb. 861, 215 N.W. 135; Schroeder v. Zehrung, 108 Neb. 573, 188 N.W. 237.

The plaintiffs based their right for injunctive relief upon the passage of an ordinance creating a paving district and the proposal on the part of the city council to enter into a contract for the paving of the streets and highways within said district. The matter of improving the streets, alleys and highways within the corporate limits of a municipality is one strictly of...