Schroeder v. Zehrung
| Decision Date | 06 May 1922 |
| Docket Number | 22463 |
| Citation | 188 N.W. 237,108 Neb. 573 |
| Parties | E. H. SCHROEDER, APPELLANT, v. F. C. ZEHRUNG, MAYOR, ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: WILLIAM M MORNING, JUDGE. Affirmed.
AFFIRMED.
C. C Flansburg, O. L. Jones and C. L. Rein, for appellant.
C Petrus Peterson and Charles R. Wilke, contra.
Plaintiff brought this action in the district court for Lancaster county to enjoin the city of Lincoln and its mayor and council from entering into a contract with the Technical Advisory Corporation for the performance of certain work, including the preparation of, and submission to, the mayor and council of a proposed ordinance for the zoning of the city of Lincoln. From a judgment of dismissal, entered upon the sustaining of a general demurrer to the amended petition, plaintiff has appealed.
In his amended petition plaintiff alleges that he is an elector, citizen, taxpayer and property owner of the city of Lincoln; that Lincoln is a city of the first class having a population of over 40,000 and less than 100,000 inhabitants, and is governed by chapters 47 and 51, Rev. St. 1913, and by a home rule charter, a copy of which is made a part of the petition; that the Technical Advisory Corporation made a written proposal to the city engineer of said city to make a field survey and permanently zone said city; that a written contract in accordance with said proposal, duly executed by said corporation, accompanied said proposal; that the city council adopted a resolution accepting the said proposal and authorizing the mayor and city engineer to enter into a contract with said Technical Advisory Corporation in accordance with said proposal, subject to approval in its final form; copies of said written proposal, contract and resolution were made parts of the amended petition; that within the time required by law there was filed in the office of the city clerk of the city of Lincoln a petition in due form signed by the requisite number of legal voters protesting against the passage of such resolution and requesting the council to either repeal or revoke said resolution or submit said proposal, contract and resolution to a vote of the legal voters of said city; that said council has failed to reconsider or set aside such resolution or submit the same to a special election called for that purpose; that the city council will approve said contract and proposal and execute the same unless restrained by the court.
The question for determination is whether, under the facts alleged in the petition, plaintiff and other taxpayers and electors of the city of Lincoln are entitled to have the resolution adopted by the city council submitted to the electors under the referendum petition filed with the city clerk. Plaintiff insists that the right to have such resolution submitted to a referendum vote is guaranteed by constitutional and statutory provisions, as well as by the provisions of the home rule charter, and he also insists that the resolution is legislative in character, but that it is referable to the voters even if it is not legislative in character.
The constitutional provisions relating to the referendum are found in section 3, art. III of the Constitution. It specifically provides that the petition therefor should be signed by 5 per centum of the voters of the entire state, and that they should be distributed over two-fifths of the counties of the state. It is apparent that the voters of other counties in the state could have no interest in, nor right to pass upon, any ordinance or resolution enacted by the municipality, and it is quite clear that the referendum provisions of the Constitution have reference to the acts of the state legislature only, and that they are not applicable to municipal acts or legislation.
The Constitution of the state of Oregon provides: "The initiative and referendum powers reserved to the people by this Constitution are hereby further reserved to the legal voters of every municipality and district, as to all local, special, and municipal legislation." The decision of the supreme court of that state in Long v. City of Portland, 53 Ore. 92, 98 P. 149, cited and relied upon by plaintiff, and holding that the right of referendum is reserved by the Constitution to the voters of the city regardless of any charter provisions, is not applicable in this state, for the reason that the Constitution of this state contains no provision of a similar character.
The city of Lincoln has adopted a home rule charter...
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