Sandell v. City of Omaha

• Decision Date: 26 July 1927
• Docket Number: 26028
• Citation: 215 N.W. 135,115 Neb. 861
• Parties: GUSTAVE A. SANDELL ET AL., APPELLEES, v. CITY OF OMAHA, APPELLANT
• Court: Nebraska Supreme Court

215 N.W. 135

115 Neb. 861

GUSTAVE A. SANDELL ET AL., APPELLEES, v. CITY OF OMAHA, APPELLANT

No. 26028

Supreme Court of Nebraska

July 26, 1927

APPEAL from the district court for Douglas county: WILLIAM G HASTINGS, JUDGE. Reversed.

REVERSED.

Dana B Van Dusen, John F. Moriarty and Thomas J. O'Brien, for appellant.

Hasselquist & Chew, contra.

H. M Baldridge and L. J. Te Poel, amici curiae.

Heard before ROSE, DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ., and L. S. HASTINGS, District Judge.

OPINION

DEAN, J.

The city of Omaha has a population of more than 200,000 inhabitants and is governed by a home rule charter pursuant to the provisions of article XI of the Nebraska Constitution.

Gustave A. Sandell and 87 others joined as plaintiffs in this suit in the district court for Douglas county to enjoin the city of Omaha, and Otto Bauman as city treasurer, from collecting or attempting to collect certain taxes which were levied and assessed by the mayor and city council "upon their property and upon the property of all others similarly situated" for the cost of "paving and curbing Lincoln boulevard, between Dodge street and Burt street, and Turner boulevard, between Dodge street and Farnam street," adjoining certain city real estate which is individually and severally owned by plaintiffs. The contention is that the levy is unconstitutional. A judgment was rendered in favor of plaintiffs. The city has appealed.

In their petition, plaintiffs pleaded the following:

"Plaintiffs aver that the acts and proceedings of defendant are void, unlawful, unenforceable, the confiscation of plaintiffs' property, the taking of plaintiffs' property without due process of law and * * * without just compensation, in violation of the Constitution of the state of Nebraska and of the United States of America, and the assessment of taxes disproportionate to benefits, ultra vires, and without authority of law, and especially as follows: (a) That the defendant, the city of Omaha, pursuant to an ordinance No. 12,041, which was presented to the city council on February 13, 1924, and passed by that body on March 4, 1924, attempted to amend the charter of the city of Omaha as provided and set forth in said ordinance No. 12,041. * * * In this connection plaintiffs aver that defendant, the city of Omaha, pursuant to ordinance No. 11,310, at an election held July 18, 1922, and pursuant to authority granted by the Constitution of the state of Nebraska, the city of Omaha adopted the charter of the city of Omaha as a home rule charter of such city and thereafter, and on the date above referred to, attempted to amend said city charter. Plaintiffs aver that it is provided by the Constitution of the state of Nebraska, being section 5 of art. XI: 'The charter of any city having a population of more than one hundred thousand inhabitants may be adopted as the home rule charter of such city by a majority vote of the qualified electors of such city voting upon the question, and when so adopted may thereafter be changed or amended as provided in section 4 of this article, subject to the Constitution and laws of the state.'"

Section 4 of the article above referred to provides: "The city clerk of said city shall publish with his official certification, for three times, a week apart in the official paper of said city, if there be one, and if there be no official paper, then in at least one newspaper published and in general circulation in said city, the full text of any charter or charter amendment to be voted on at any general or special election."

The record shows that the charter amendment was not published "three times, a week apart," and from this fact plaintiffs argue that the amendment and, of course, the assessment of taxes made thereunder are void. It is, however, agreed that "the full text" of the proposed charter amendment was published in the official newspaper, the Omaha Evening Bee, "on March 7, 1924, April 21, 1924, and May 5, 1924, and at no other time."

State v. Winnett, 78 Neb. 379, 110 N.W. 1113, is an original proceeding in quo warranto wherein the state challenged the right of the respondent claimants, under an amendment to the Constitution, to hold the office of state railway commissioners, an office which was subsequently held by this court to have been created by the adoption of a duly submitted constitutional amendment by the votes of the required number of electors. In the Winnett case, section 1, art. XV of the Constitution (now art. XVI) is cited, which, so far as applicable here, provides:

"Either branch of the legislature may propose amendments to this Constitution, and if the same be agreed to by three-fifths of the members elected to each house, such proposed amendments shall be entered on the journals, with the yeas and nays, and published once each week in at least one newspaper in each county, where a newspaper is published, for three months immediately preceding the next election of senators and representatives."

The Winnett case points out that "the proposed amendment was not 'published once each week in at least one newspaper in each county where a newspaper is published, for three months immediately preceding' the election at which it was submitted to the voters as required by section 1, art. XV (now art. XVI), of the Constitution." It appears that the parties in that case had entered into a stipulation of facts, and the court, continuing, said:

"The facts above quoted from the stipulation show that there has not been a literal compliance with this clause of the Constitution. The election was held on the 6th day of November. The three months named in the Constitution are three calendar months and would include the period of time commencing with the beginning of the 6th day of August (McGinn v. State, 46 Neb. 427, 65 N.W. 46), and to comply literally with this provision the first publication must be before that day. There was but one paper published in Logan county, and it appears that the proposed amendment was not published in that county until August 9, four days later than the limit prescribed by the Constitution. This is the most serious irregularity disclosed in the matter of the publication. It is therefore unnecessary to discuss other irregularities because, unless this failure in Logan county to comply with the letter of the Constitution requires us to conclude that the amendment is invalid, the other specified irregularities, which are of a less serious nature, are not sufficient to require such conclusion."

It may be observed that in the Winnett case several instances are pointed out wherein the proposed amendment was not published in some of the newspapers as the Constitution required. Nevertheless, we there held, as above noted, that the publication was a substantial compliance with the constitutional requirement.

Counsel for the defendant city also cite and rely on the rule announced in Baker v. Moorhead, 103 Neb. 811, 174 N.W. 430, wherein we held that a construction of a provision of the Constitution which would make difficult or impossible any fair and just method of revising the Constitution will not be adopted by the courts. And in People v. Sours, 31 Colo. 369, 74 P. 167, in respect of an attack upon a Constitutional amendment, the court held that, where an amendment to such Constitution is attacked after its ratification by the people, every reasonable presumption, both of law and fact, is to be indulged in favor of its validity. And Judge Dillon said: "Provisions of the freeholders' charter which are purely municipal in their character supersede provisions of the general laws which are inconsistent therewith." 1 Dillon, Municipal Corporations (5th ed.) sec. 63, p. 116. On principle the same rule applies here that is pointed out in the Moorhead and the Sours cases, above cited, and in the cases following.

The case entitled Constitutional Prohibitory Amendment 24 Kan. 700, is relied on by the city. This is one of the leading cases on the subject now before us. The opinion was written by Judge Brewer, afterward a...