Schutte v. Schmitt, 33808
| Decision Date | 16 March 1956 |
| Docket Number | No. 33808,33808 |
| Citation | 75 N.W.2d 656,162 Neb. 162 |
| Parties | George E. SCHUTTE, Appellee, v. Leo J. SCHMITT, etc., et al., Appellants. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. A public officer who has acted under and pursuant to an unconstitutional statute is not a necessary party to an action brought to enjoin those public officers whose duty it is to carry out such order when no relief of any kind is sought against the former.
2. As a general rule, an injunction will not be granted where the remedy at law for the injury complained of is full, adequate, and complete.
3. A void judgment is in reality no judgment. It is a mere nullity. It is supported by no presumption, and may be impeached in any action, direct or collateral.
4. 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.
5. Due process of law requires notice and an opportunity to be heard, where financial burdens are necessarily imposed on property owners by an exercise of judicial power pursuant to specific terms of a statute.
Robert D. Moodie, West Point, for appellants.
Kerrigan & Flory, Fremont, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This is an appeal from a decree of the district court for Cuming County holding section 79-420, R.R.S.1943, as amended by the 1953 Legislature, unconstitutional; holding an order of the State Superintendent of Public Instruction, made pursuant to and under authority thereof, void; and permanently enjoining the school board of school district No. 55 and the officials of Cuming County from performing certain of their official duties as they relate to assessing and levying taxes on appellee's lands for the support of the public schools in school district No. 55 in Cuming County, Nebraska.
Appellee, George E. Schutte, was a resident and elector of school district No. 12 in Cuming County, Nebraska, owning approximately 266 acres of land located therein. The 1953 Nebraska Legislature, effective as of September 14, 1953, amended section 79-420, R.R.S.1943. As amended it reads as follows: Section 79-420, R.S.Supp.,1953.
By letter dated August 16, 1954, the State Superintendent of Public Instruction notified the officers and board members of school district No. 12 that:
'Pursuant to the authority delegated to me by this law (section 79-420, R.S.Supp.,1953), I am dissolving your School District No. 12 and attaching it in its entirety to School District No. 55, Cuming County.
'This dissolution is effective as of Saturday, August 14, 1954.'
On November 23, 1954, appellee brought this action in the district court for Cuming County against the members of the school board of district No. 55 and the county treasurer, county superintendent, county assessor, and county clerk of Cuming County.
Appellants demurred to appellee's petition on three grounds: (1) A defect in parties defendant; (2) that appellee (plaintiff) had an adequate remedy at law; and (3) because the petition failed to state a cause of action. The trial court overruled this demurrer and, appellants having elected to stand thereon, entered the decree already referred to. Appellants thereupon filed a motion for new trial and this appeal is from the overruling thereof.
Was the State Superintendent of Public Instruction a necessary party? No affirmative relief was sought against him or with reference to any duty or duties of his office. He would undoubtedly have been a proper party if the appellee had desired to make him such. See Alston v. School Board of City of Norfolk, 4 Cir., 112 F.2d 992, 130 A.L.R. 1506. However, a public officer who has acted under and pursuant to an unconstitutional statute is not a necessary party to an action brought to enjoin those public officers whose duty it is to carry out such order when no relief of any kind is sought against the former. As stated in Williams v. Fanning, 332 U. S. 490, 68 S.Ct. 188, 189, 92 L.Ed. 95: '* * * the superior officer is an indispensable party if the decree granting the relief sought will require him to take action, either by exercising directly a power lodged in him or by having a subordinate exercise it for him.'
And in Oliver v. Jersey City, 63 N.J.L. 634, 44 A. 709, 710, 76 Am.St.Rep. 228, 48 L.R.A. 412, the court said: '* * * where an action is instituted, the object of which is only to determine the validity of the act or thing done by an officer, and not involving his personal integrity or want of good faith, the officer himself is not a necessary party.'
Did appellee have such an adequate remedy at law that injunction could not be maintained? The order of the State Superintendent of Public Instruction was undoubtedly a final order within the meaning of section 25-1902, R.R.S.1943, and therefore reviewable by petition in error. Section 25-1901, R.R.S.1943. See, also, Cacek v. Munson, 160 Neb. 187, 69 N.W.2d 692.
'As a general rule, an injunction will not be granted where the remedy at law for the injury complained of is full, adequate, and complete.' 43 C.J.S., Injunctions, § 25, p. 450. See, also, Nickel v. School Board of Axtell, 157 Neb. 813, 61 N.W.2d 566.
However, as stated in Radil v. Sawyer, 85 Neb. 235, 122 N.W. 980:
And, in Schafersman v. School District, 120 Neb. 673, 234 N.W. 791, we held injunction to be a proper remedy to prevent a school district or its officers from assuming jurisdiction over and taxing land in another school district under an unconstitutional statute. See, also, Nickel v. School Board of Axtell, supra; Watkins v. Dodson, 159 Neb. 745, 68 N.W.2d 508.
We come then to the question, is section 79-420, R.S.Supp., 153, unconstitutional? The Nebraska Constitution provides: 'No bill shall contain more than one subject, and the same shall be clearly expressed in the title.' Art. III, § 14, Constitution of Nebraska. The title to L.B. 455 provides insofar as here material that: '* * * to change the conditions under which a depopulated school district shall be attached to a neighboring district; to provide duties for the county superintendent and the Superintendent of Public Instruction; * * *.' Laws 1953, c. 291, p. 988.
L.B. 455 deals with the subject of school laws and the language used, as it relates to section 79-420, R.R.S.1943, fairly indicates the scope and purpose thereof.
Admittedly the state is supreme in the creation and control of the school districts of the...
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