Searle v. Yensen

• Decision Date: 19 July 1929
• Docket Number: 26755
• Citation: 226 N.W. 464,118 Neb. 835
• Parties: EDWARD M. SEARLE, JR., APPELLANT, v. HARDIN YENSEN ET AL., APPELLEES
• Court: Nebraska Supreme Court

226 N.W. 464

118 Neb. 835

EDWARD M. SEARLE, JR., APPELLANT, v. HARDIN YENSEN ET AL., APPELLEES

No. 26755

Supreme Court of Nebraska

July 19, 1929

APPEAL from the district court for Scotts Bluff county: EDWARD F CARTER, JUDGE. Reversed, with directions.

REVERSED.

Syllabus by the Court.

Under section 1, art. 2, of the Constitution of this state dividing the powers of government into three departments, legislative, executive and judicial, and prohibiting any one department from the exercise of the powers of either of the others, the Legislature may not impose upon the courts the performance of nonjudicial duties, nor delegate to them any legislative power.

The Legislature may delegate a part of its power over local subjects to municipal corporations, county boards and other public bodies within the legislative classification of departments, but not to either of the other departments.

Questions of public policy, convenience and public welfare, as related to the organization, incorporation, boundaries, powers and government of electric light, heat, and power districts are, in the first instance, of purely legislative cognizance, and may not be referred to the courts for determination.

The Legislature, having declared its policy and determined the facts and conditions which must form the basis for the organization, incorporation, powers and government of an electric light, heat, and power district, or other public body, may vest authority in the courts to determine whether or not the law has been complied with, as a condition upon which such organization shall come into being. In such case the court does not adjudicate upon the necessity or political propriety of forming the corporation, and hence does not exercise any political function.

Sections 3 and 4 of chapter 108, Laws 1927, are unconstitutional, as an attempt to impose upon the courts the performance of nonjudicial duties, and an unlawful delegation of legislative power; and such sections being a part of the inducement for the enactment, the entire act must fall.

Appeal from District Court, Scotts Bluff County; Carter, Judge.

Suit by Edward M. Searle, Jr., against Hardin Yensen and others. From an adverse decree, plaintiff appeals. Reversed and remanded, with instructions.

Mothersead & York, for appellant.

White & Lyda and Perry, Van Pelt & Marti, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, and DAY, JJ., and REDICK and STEWART, District Judges.

OPINION

REDICK, District Judge.

This is a suit in equity to enjoin the issuance by the Gering Valley Hydro-Electric Light and Power District of bonds for the construction or purchase of main transmission lines or distribution lines for the purpose of furnishing electrical energy for light, heat and power to the residents of the district. The district is composed of a compact group of lands in Scotts Bluff county surrounding the city of Gering, and plaintiff, a resident of Douglas county, is the owner of a tract of land within the boundaries of the proposed district. The district court granted a temporary injunction, but afterwards dissolved the same, and upon final hearing rendered decree for the defendants, who were the board of directors of the district, and plaintiff appeals.

The district was organized under chapter 108, Laws 1927, which is an act complete in itself, and purports to authorize the organization of such districts upon petition of 25 per cent. of the electors of such district, 15 per cent. of whom shall be freeholders therein. The provisions of that act may be summarized as follows: Section 2 provides that the district shall consist of one or more units, either "urban" or "rural," or both; that a petition signed by 25 per cent. or more of the electors of the proposed district shall be filed with the clerk of the district court of the county, suggesting the boundaries of the district and the units therein, accompanied by suitable maps, and asking that the proposed district be declared a body corporate, and that the district court hold a hearing upon notice and fix the boundaries of the district and units respectively, provided that any proposed unit where the petition was not signed by 15 per cent. of the resident freeholders shall be excluded from the district; provided for the giving by the petitioners of a bond conditioned to pay all expenses if the district was not formed, and provided for the spreading of the proceedings upon the records of the court. Section 3 provides for a hearing by the district court after certain published notice. Section 4 defines the powers of the court. Section 5, upon the entering by the court of an order incorporating the district, requires the findings and orders of the court to be submitted to the resident freeholders of the district for approval upon publication of notice thereof.

Then follow several sections covering the manner of holding the election, powers of the district, election of board of directors, the powers of the board, etc.

Section 16 authorizes the district to issue bonds for the purchase of electricity and the transmission and sale thereof, for the construction or purchase of a main existing line, or the construction of a main plant, upon the submission of the question at a general or special election, provided 60 per cent. of the electors voting shall approve the same, and authorizing the levy of a tax upon the real and personal property within the district to pay the principal and interest of said bonds. Section 17 divides the funds of the district into general and special. Section 18 provides for the letting of contracts for the construction of plants, transmission or distribution lines. Section 19 provides for the incorporation, on the order of the district court, of each of the hydro-electric units comprising the district, and authorizes them to issue bonds and collect taxes to meet the same, the proceeds to be used for purchasing transmission or distribution lines, which are declared to be works of internal improvement. Section 22 provides for an appeal by any person owning property within the district from the final order of the district court incorporating the district, and for the payment under protest of any taxes levied, and the bringing of an action to recover the same.

A large number of objections are made to the act raising the question of its constitutionality. The most serious one, in our view, and the only one which we deem it necessary to discuss, relates to sections 3 and 4 of the act, by which it is contended that the legislature has attempted to impose upon the district court the performance of non-judicial duties and to delegate to such court a part of its legislative power. This requires a construction of the sections attacked, and for a better understanding of the question they are set out in full.

"Section 3. Upon the filing of said petition, maps, plats, and bonds, the district court shall set a time and place for a hearing on said petition; and shall cause the petitioners to publish a notice within each of the counties where said units are located and within which the proposed district or any part of it will lie, of the time and place of such hearing, which notice shall state the date of filing the petitions; the names of the petitioners; description of the units mentioned in said petition as constituting the proposed district; the boundaries of said proposed district; and the prayer of the petition, which shall be published once a week for at least four consecutive times in each of said newspapers, and any freeholder within said proposed district may file objections to said petition and the prayer thereof on or before the third Monday after the last publication of said notice."

"Section 4. From the testimony adduced at such hearing the district court shall within ten (10) days after the completion of such hearing determine whether or not the district should be incorporated; and whether the suggested boundaries are reasonable and proper for the public convenience and welfare. And the court may change, alter and fix the boundary lines of such district with the end in view of promoting the interest of said power district, its units, 'rural' or 'urban,' provided that lands not included in the original petition and maps shall not upon such hearing be included in the boundaries as fixed and determined by the district court, if said boundaries be altered or changed as aforesaid, unless the owner or owners of the land or lands to be added thereto shall petition the court in writing so to do on or before said answer day. As a part of the evidence offered at said hearing the petitioners shall exhibit a certified copy of the individual and aggregate assessed valuation of all the units proposed to be included in said district and the court shall make a finding thereof in its order. If a district is formed by the court, there shall also be included in said order and submitted in the proposition to the electors a proposal for a tax sufficient to pay the preliminary expense of organization and the expense of the election."

The act in question was doubtless inspired as a consequence of our holding unconstitutional a former act upon the same subject (Comp. St. 1922, secs. 7147 to 7154, as amended by chapter 169, Laws 1923) in the case of Elliot v. Wille, 112 Neb. 86, 200 N.W. 347. That act was there held invalid as a delegation of legislative power to a group of nonofficial individuals, as it made it the duty of the county board, upon the filing of a petition by certain freeholders, to submit to the electorate of the proposed district the question of its organization. The boundaries of the district were first determined by a certain number of freeholders, and then, "without any provision for...