State ex rel. City of Grand Island v. Union Pac. R. Co., No. 32729.

CourtSupreme Court of Nebraska
Writing for the CourtCHAPPELL
Citation42 N.W.2d 867,152 Neb. 772
Docket NumberNo. 32729.
Decision Date08 June 1950

152 Neb. 772
42 N.W.2d 867


No. 32729.

Supreme Court of Nebraska.

June 8, 1950.

The state on relation of the City of Grand Island filed an action in mandamus to compel the Union Pacific Railroad Company to construct an underpass under railroad tracks which ran across a city street. The District Court, Hall County, Spikes, J., rendered a judgment adverse to respondent, and respondent appealed. Ths Supreme Court, Chappell, J., held, inter alia, that 1949 statute changing made and manner of procedure for requiring railroads to construct viaducts or subways under their tracks in cities of the first class, does not abrogate operation of general savings statute providing that wherever a statute is repealed, repeal does not affect pending actions filed thereon or causes of action not in suit that accrued prior to repeal, except as may be provided in the repealing statute.

Judgment affirmed.

[42 N.W.2d 869]

Syllabus by the Court

1. The statutory duty of a railroad company or companies to construct or repair a subway viaduct or viaducts within a city is enforceable by mandamus.

2. A mandamus proceeding is an action at law, and findings of fact therein based upon conflicting evidence will not be disturbed unless clearly wrong

3. The pleadings in a mandamus proceeding may be amended in the same manner as pleadings in a civil action, and the issues thereby joined must be tried and further proceedings therein had in the same manner as in any other civil action.

4. In construing a statute, the legislative intention is to be determined from a general consideration of the whole act with reference to the subject matter to which it applies and the particular topic under which the language in question is found, and the intent so deduced from the whole will prevail over that of a particular part considered separately.

5. Courts will, when necessary to effectuate the obvious intention of the Legislature, construe conjunctive words as disjunctive.

6. A legislative act will operate only prospectively unless the legislative intent and purpose that it should operate retrospectively is clearly disclosed.

7. The general saving clause, section 49-301, R.S.1943, applies as though it were

[42 N.W.2d 870]

expressly incorporated in a repealing act, unless abrogated therein.

8. Such general saving clause is all-inclusive, and has the force and effect of saving all pending actions founded upon a statute repealed and all causes of action that accrued thereon prior to any such repeal, except where the repealing statute itself clearly discloses that it was not the intention of the Legislature that such rights and remedies should be saved.

T. W. Bockes, C. B. Matthai, George Holdrege and R. B. Hamer, all of Omaha, Suhr, Pierce & Cronin, Grand Island, for appellant.

Harold A. Prince, Walter P. Lauritson, and E. Merle McDermott, all of Grand Island, for appellee.


CHAPPELL, Justice.

On February 1, 1949, relator authoritatively filed this action in mandamus to compel respondent railroad company, owning and operating its tracks across the city's streets, to construct an underpass or subway viaduct under such tracks, across Sycamore Street, as required by the provisions of section 16-656 et seq., R.S.1943.

An order was entered on February 1, 1949, allowing an alternative writ of mandamus, which writ was issued and duly served on respondent, commanding it to commence construction in accordance with plans of the city then on file, showing the width, length, strength, and materials of such underpass and approaches thereto, or show cause on or before March 8, 1949, why it refused to do so.

On March 7, 1949, respondent filed its answer and return to the writ. On May 12, 1949, such return was amended, alleging substantially that Chapter 28, Laws 1949, effective April 30, 1949, repealed the provisions under which relator was proceeding, thus barring the action, and alleging further that the city's plans were not only insufficient but also that the action of the city council in passing an ordinance purporting to require and approve such plans was null and void because they were not ‘as required by the board of public works' as provided by section 16-657, R.S.1943. Likewise, on May 12, 1949, relator amended its pleadings to traverse such amendments.

The cause was tried on the merits and the trial court entered its decree on July 29, 1949, finding and adjudging the issues generally in favor of relator and against respondent and ordering issuance of a peremptory writ of mandamus, commanding respondent to commence on or before September 1, 1949, construction of the underpass proper and the approaches proper thereto, not to exceed 800 feet in length, in accordance with the city's plans, exhibit 28, received in evidence. As a matter of course, the word ‘proper’ appearing after the words ‘underpass' and ‘approaches' modified each as an adjective, and was used only to distinguish the one from the other.

Respondent's motion for new trial was overruled, and in conformity with its own motion, issuance of a peremptory writ of mandamus was stayed, and the judgment was superseded. Thereafter respondent appealed to this court, assigning substantially that the judgment was not sustained by the evidence and was contrary to law and the evidence. We conclude that the assignments have no merit.

The facts are primarily without dispute, except upon the respectively alleged sufficiency or insufficiency of the plans prepared by the city engineer respecting the width, height, strength, and materials of the proposed project, of which plans respondent concededly had notice at all times. A stipulation filed by the parties on May 16, 1949, and received in evidence at the trial admitted the procedure allegedly followed by the city, and acts done by it thereunder, as well as the history and topography of the city, and respondent's operative relation thereto. Primarily, the questions presented for decision involve the ultimate validity of the city's procedure, together with its actions thereunder, and the legal effect of Chapter 28, Laws 1949, effective after relator's right to compel construction had allegedly

[42 N.W.2d 871]

accrued, and it had incurred and paid obligations resulting therefrom, and after the filing of this mandamus action by relator, the issuance of an alternative writ, and the filing of respondent's return and answer thereto.

Section 16-656, R.S.1943, provided: ‘Upon a majority vote of the citizens at a regular or special election of any city of the first class, the mayor and council shall have power to require any railroad company or companies, owning or operating any railroad track or tracks upon or across any public street or streets of the city, to erect, construct, reconstruct, complete, and keep in repair any subway viaduct or viaducts, upon or along such street or streets, and over or under such track or tracks, including the approaches to such subway viaduct or viaducts, as may be deemed and declared by the mayor and council necessary for the safety and protection of the public; Provided, the approaches to any such subway viaduct, which any railroad company or companies may be required to construct, reconstruct, and keep in repair, shall not exceed for each viaduct a total distance of eight hundred feet.’

Section 16-657, R.S.1943, provided: ‘Whenever any such subway viaduct shall be deemed and declared by ordinance necessary for the safety and protection of the public, the mayor and council shall provide for appraising, assessing, and determining the damage, if any, which may be caused to any property by reason of the construction of any such subway viaduct and its approaches. The proceedings for such purpose shall be the same as provided herein for the purpose of determining damages to property owners by reason of the change of grade of a street, and such damage shall be paid by the city, and may be assessed by the city council against property benefited, and the cost of approaches beyond the distance of eight hundred feet may also be assessed by the council against property benefited by reason of the construction of any such subway viaduct and its approaches. The width, height, and strength of any such viaduct and the approaches thereto, and the material thereof, shall be as required by the board of public works, and as may be approved by the mayor and council.’

Respondent conceded that relator complied with every provision of such statutes except the last sentence of section 16-657, R.S.1943. The city conceded that it had no board of public works, but contended that the appointment of such a board was optional, not mandatory, as demonstrated by other related statutory provisions, in which event the mayor and council had authority to and did require and approve the width, length, strength, and the materials of the proposed underpass.

In that connection we call attention to the fact that in the original act, Chapter 18, Laws 1901, s. 118, p. 302, such last sentence read: ‘The width, height, and strength of any such viaducts and the approaches thereto, the material therefor, and the manner of the construction thereof, shall be as required by the board of public works, as may be approved by the mayor and council.’ (Italics supplied.) It will be noted that the portion thereof italicized was eliminated from section 16-657, R.S.1943, by Chapter 42, Laws 1919, s. 1, p. 125, which act also, by amendment, included the duty of railroads to build subway viaducts or underpasses. As the statute now appears, it is evident that ‘the manner of the construction’ of such an underpass was for determination by respondent and not relator.

Chapter 28, Laws 1949, effective April 30, 1949, did not abrogate the duty but generally changed the mode and manner of procedure for requiring the duty of railroads to construct viaducts over or subways...

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