School District No. 54 of Douglas County ex rel. Hogan v. Howell, 54

• Decision Date: 16 June 1961
• Docket Number: No. 54,No. 34977,54,34977
• Citation: 110 N.W.2d 52,172 Neb. 404
• Parties: SCHOOL DISTRICT NO. 54 OF DOUGLAS COUNTY, Nebraska, ex rel. Dennis P. HOGAN, Jr., Appellant-Cross-Appellee, v. Sam J. HOWELL, Treasurer of the City of Omaha, Douglas County, Nebraska, Appellee, School Districtof Douglas County, Nebraska, Intervener-Appellee, The School District of Omaha in the County of Douglas, in the State of Nebraska, Intervener-Appellee-Cross-Appellant, School District Number 66 of Douglas County, Nebraska, Intervener-Appellant-Cross-Appellee.
• Court: Nebraska Supreme Court

Page 52

110 N.W.2d 52

172 Neb. 404

SCHOOL DISTRICT NO. 54 OF DOUGLAS COUNTY, Nebraska, ex rel. Dennis P. HOGAN, Jr., Appellant-Cross-Appellee, v. Sam J. HOWELL, Treasurer of the City of Omaha, Douglas County, Nebraska, Appellee School District No. 54 of Douglas County, Nebraska, Intervener-Appellee The School District of Omaha in the County of Douglas, in the State of Nebraska, Intervener-Appellee-Cross-Appellant School District Number 66 of Douglas County, Nebraska, Intervener-Appellant-Cross-Appellee.

No. 34977.

Supreme Court of Nebraska.

June 16, 1961.

Syllabus by the Court.

1. The Constitution of the State of Nebraska has provided since 1875 that all fines, penalties, and license money arising under the rules, bylaws, or ordinances of cities, villages, precincts, or other municipal subdivisions less than a county, shall belong and be paid over to the same respectively, and shall be appropriated exclusively to the use and support of the common schools in the respective subdivisions where the same may accrue.

2. Since 1913 there has been no statutory or legally established formula for the division and distribution of funds collected on account of fines, penalties, and license money where parts of cities, villages, precincts, or other municipal subdivisions less than a county are situated in more than one school district.

3. On the adoption of a code or revision by the Legislature, all laws of a general or permanent nature which previously existed but which were omitted therefrom cease to be law, except as it may be otherwise provided in the code or revision or in the act adopting it.

4. In order to reasonably and equitably comply with the constitutional mandate it is required that a division of fines, penalties, and license money shall be made in proportion to the number of persons of school age residing in the areas of the school districts which are within the municipal subdivision according to the school census taken last before apportionment of funds.

McGowan & Troia, Ross & O'Connor, Clayton H. Shrout, Omaha, for plaintiff, appellant.

Herbert M. Fitle, Bernard E. Vinardi, Irving B. Epstein, Frederick A. Brown, Benjamin M. Wall, Omaha, for defendant, appellee.

Clayton H. Shrout, Omaha, for intervener, School District No. 54 of Douglas County.

W. Ross King, Seymour L. Smith, Omaha, for intervener, School District of Omaha.

Wells, Martin, Lane, Baird & Pedersen, Omaha, for intervener, School District No. 66 of Douglas County.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.

YEAGER, Justice.

This is an action by School District No. 54 of Douglas County, Nebraska, ex rel. Dennis P. Hogan, Jr., plaintiff and appellant herein, against Sam J. Howell, Treasurer of the City of Omaha, Douglas County, Nebraska, for an accounting of all fines, penalties, and license money on hand arisng under the ordinances of the city of Omaha, Douglas County, Nebraska, and for judgments against the defendant for one-third of that amount and the costs of suit. School District No. 54 ex rel. Dennis P. Hogan, Jr., is the named plaintiff. School District No. 54 as such entered the case by petition of intervention and prayed for the same relief as the plaintiff. There is no contention that their interests are adverse.

In the action School District No. 66 of Douglas County, Nebraska, filed a petition of intervention in which it prayed for the same character of relief as did the plaintiff, and for a like division of funds. It is an intervener and an appellate herein and will be referred to as District No. 66.

The School District of Omaha filed a petition of intervention and answers to the petitions of Districts Nos. 54 and 66, and prayed for an accounting of the fines, penalties, and license money in the hands of the defendant or to be received by him, and the judgment for the full amount. This intervener will be referred to as the Omaha District.

The defendant filed an answer concerning which it is necessary to say only that he denied the allegations of the plaintiff and the petitions of intervention. It is interpolated here that at the conclusion of the trial he was in the position of a stakeholder ready to respond to whatever judgment should be rendered with regard to the funds in controversy.

Other pleadings were filed but nothing is required as to them except to say that issue was joined and the case tried on the question of what party or parties were entitled to the distribution of the funds to which reference has been made which were collected by the defendant under the ordinances of the city of Omaha, Douglas County, Nebraska.

The case was tried to the court and a judgment was rendered by which the defendant was commanded to pay over and credit to the Omaha District all money on hand and to be collected in the future.

The defendant filed a motion for new trial as did the plaintiff, District No. 54, and District No. 66. These motions were overruled. From the judgment and order overruling the motions for new trial the plaintiff and District No. 66 have appealed.

Hereinafter, for convenience, the plaintiff School District No. 54 ex rel. Dennis P. Hogan, Jr., and intervener School District No. 54 will be referred to as one party, District No. 54, as the interests are the same. In view of the joinder of the plaintiff and District No. 54 for the further purposes of this opinion District No. 54 and District No. 66 will be treated as appellants and the Omaha District as appellee.

The basic matter to be determined in this case is the proper method for disposition and distribution of fines, penalties, and license money now in the hands and in the future to come into the hands of the treasurer of the city of Omaha, Douglas County, Nebraska, under the rules, bylaws, and ordinances of the city of Omaha.

Article VII, section 5, of the Constitution of the State of Nebraska, contains the following provision: '* * * all fines, penalties, and license money arising under the rules, by-laws, or ordinances of cities, villages, precincts, or other municipal subdivision less than a county, shall belong and be paid over to the same respectively. All such fines, penalties, and license money shall be appropriated exclusively to the use and support of the common schools in the respective subdivisions where the same may accrue, * * *.' There is other substance in the section but it is of no significance in the matter before the court. It is further pointed out specifically that the section of which this is a part has been amended but the amendment has no effect upon this provision. The provision has existed unchanged since the adoption of the Constitution of 1875.

The parties appear to be in accord that proper disposition and distribution must be in accordance with the terms of and a proper application by the court of the provision quoted. The terms are not in doubt. By clear statement as applied to the situation presented these funds are to be appropriated to the use and support of the common schools in the city of Omaha. There is nothing however in this provision or any other constitutional provision which provides a formula for disposition and distribution in a case where there is more than one school district in the municipal subdivision.

The record in this case discloses factually that the city of Omaha is a metropolitan city and that there are three school districts which are in part within and in part without the city limits. One of these is the Omaha District, a Class V district. The other two are District No. 54 and District No. 66, Class III districts. A description of the respective areas of the districts is not deemed of importance for the purposes of this opinion.

Districts Nos. 54 and 66 contend that a proper application of the constitutional provision quoted requires that the funds in question be distributed in equal parts, or one-third to each of the three districts.

On the other hand the Omaha District contends that it is entitled to all of the funds and that the other two districts are entitled to none.

There was never any statutory formula for division and distribution from 1875 and before 1895. Districts Nos. 54 and 66 do not contend that there was. They do not contend now that it is controlled by statute. They base their contention on precedents which they say are contained in the opinions in the following cases: City of Hastings v. Thorne, 8 Neb. 160; State ex rel. Primmer v. Brodboll, 28 Neb. 254, 44 N.W. 186; State ex rel. School-Dist. No. 11 v. White, 29 Neb. 288, 45 N.W. 631; Guthrie v. State ex rel. School Dist. No. 7, 47 Neb. 819, 66 N.W. 853.

The first of these cases has no significant bearing on the matters involved herein. The other three, for the time when the decisions were rendered therein and for a period thereafter, contained precedents for the division and distribution insisted upon by Districts Nos. 54 and 66.

The decision in State ex rel. Primmer v. Brodboll, supra, was rendered in 1889. In that case three school districts were involved. They were all in part in the village of Lindsay, Nebraska. The schoolhouses of all three were outside the limits of the village. Whether or not additional area was outside is not disclosed. In the opinion it was said: 'There is no provision of statute, in such case, for dividing the license moneys among the schools in proportion to the number of scholars from each school-district, nor to make the division in proportion to the extent of the territory of each. It should therefore be applied equally among the districts, and it is so ordered.' [28 Neb. 254, 44 N.W. 187.]

The case of State ex rel. School-Dist. No. 11 v. White, supra, a case decided in 1890, had reference to a situation in the village of South Sioux City, Nebraska, wherein there were four school districts in part inside and in part on the outside of the village limits. By the opinion what was said in State ex rel. Primmer v. Brodboll, ...