State ex rel. Nelson v. Butler

• Citation: 17 N.W.2d 683,145 Neb. 638
• Decision Date: 16 February 1945
• Docket Number: s. 31815,31822,31827,31842.
• Parties: STATE ex rel. NELSON et al. v. BUTLER et al. (INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS UNION, LOCAL NO. B-763 et al., Interveners), for cases.
• Court: Supreme Court of Nebraska

17 N.W.2d 683

145 Neb. 638

STATE ex rel. NELSON et al. v. BUTLER et al. (INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS UNION, LOCAL NO. B-763 et al., Interveners), for cases.

Nos. 31815, 31822, 31827, 31842.

Supreme Court of Nebraska

February 16, 1945

[Copyrighted Material Omitted]

Syllabus by the Court.

1. It is the general rule that initiative and referendum provisions are applicable only to acts which are legislative in character, and are not applicable to those dealing with executive or administrative matters.

2. The crucial test for determining that which is legislative and that which is executive or administrative is whether the resolution or ordinance of a city council is one making a law or one executing a law already in existence.

3. Eminent domain is the right or power to take private property for public use. It is a sovereign power belonging to the state which may be exercised either directly by the legislature or through the medium of municipalities or other appropriate agencies in the public interest, but it is always subject to control and regulation by the state and is a matter of statewide concern.

4. The power of eminent domain may be delegated by the legislature, but because it is a sovereign power the legislature cannot divest itself of the power or deprive itself of the right to repossess or reclaim its primary prerogative to exercise the power as it sees fit within the limitations contained in the Constitution.

5. When the legislature has enacted a statute delegating the power of eminent domain to municipal corporations, such law takes precedence over any provisions in a home rule charter and the provisions of the charter must yield thereto, except in so far as the statute itself preserves for cities of a class like or similar powers already delegated to them by the legislature and adopted as a part of their home rule charters.

6. Since the power of eminent domain is an attribute of sovereignty and inherent in the state, only those agencies to whom the legislature has delegated the power can exercise the right and it must be exercised only on the occasion, in the mode or manner, and by the agency prescribed by the legislature.

7. The power to exercise the right of eminent domain must be exercised or delegated by the legislature, and if it is delegated to a municipal corporation upon a contingency that the existent statute shall become operative when the governing body of the city shall determine by resolution or otherwise to exercise the power, then such a resolution, if adopted, is executive or administrative in character and not subject to referendum provisions of the city's home rule charter.

8. Since mandamus is no longer a prerogative writ, section 25-328, R.S.1943, justifies intervention in mandamus cases by persons having an interest in the subject matter in litigation of such a direct and immediate character that they will gain or lose by the direct operation and effect of the judgment.

9. Ordinarily, an intervener must take the suit as he finds it is bound by the previous proceedings in the case, and cannot complain of the form of the action or of informalities or defects in the proceedings between the original parties.

10. An intervener who is not an indispensable party cannot change the position of the original parties or change the nature and form of the action or the issues presented therein.

11. Constitutional questions will not be decided in a mandamus proceeding unless they are necessary to a determination of the case, and the protection of some substantial right, nor will they be decided before the time the statute becomes operative to affect any rights of the parties who question its constitutionality and a proper case under the statute is presented.

No. 31815:

Crofoot, Fraser, Connolly & Stryker and W. W. Wenstrand, all of Omaha, for appellants.

Kennedy, Holland, DeLacy & Svoboda, H. C. Linahan, G. H. Seig, Edward F. Fogarty, Edward Sklenicka, David D. Weinberg, Louis T. Carnazzo, Fred S. White, George B. Boland, Paul Garrotto, Rudolph Tesar, Ellick, Fitzgerald & Smith, Monsky, Grodinsky, Marer & Cohen, Gross & Crawford, and Frank C. Heinisch, all of Omaha, for appellees.

No. 31822:

H. C. Linahan, G. H. Seig, Edward F. Fogarty, and Edward Sklenicka, all of Omaha, for appellants.

Kennedy, Holland, DeLacy & Svoboda, Monsky, Grodinsky, Marer & Cohen, Crofoot, Fraser, Connolly & Stryker, W. W. Wenstrand, David D. Weinberg, Louis T. Carnazzo, Fred S. White, George B. Boland, Paul Garrotto, Rudolph Tesar, Ellick, Fitzgerald & Smith, Gross & Crawford, and Frank C. Heinisch, all of Omaha, for appellees.

No. 31827:

Leon, White & Lipp, George B. Boland, Paul Garrotto, and Rudolph Tesar, all of Omaha, for appellants.

Kennedy, Holland, DeLacy & Svoboda, H. C. Linahan, G. H. Seig, Edward F. Fogarty, Edward Sklenicka, Crofoot, Fraser, Connolly & Stryker, W. W. Wenstrand, David D. Weinberg, Louis T. Carnazzo, Ellick, Fitzgerald & Smith, Monsky, Grodinsky, Marer & Cohen, Gross & Crawford, and Frank C. Heinisch, all of Omaha, for appellees.

No. 31842:

Ellick, Fitzgerald & Smith, of Omaha, for appellants.

Kennedy, Holland, DeLacy & Svoboda, H. C. Linahan, G. H. Seig, Edward F. Fogarty, Edward Sklenicka, Crofoot, Fraser, Connolly & Stryker, W. W. Wenstrand, David D. Weinberg, Louis T. Carnazzo, George B. Boland, Fred S. White, Paul Garrotto, Rudolph Tesar, Monsky, Grodinsky, Marer & Cohen, Gross & Crawford, and Frank C. Heinisch, all of Omaha, for appellees.

Heard before SIMMONS, C. J., PAINE, CARTER, MESSMORE, CHAPPELL and WENKE, JJ., and SPIKES, District Judge.

CHAPPELL, Justice.

This is a mandamus action. Relators are legal voters, qualified electors, and signers of a referendum petition. They filed an application in the district court for Douglas county Nebraska, on behalf of themselves and all others similarly situated, praying for a writ of mandamus to require the city council of Omaha, Nebraska, to repeal an alleged legislative resolution adopted by it on September 21, 1943, or to check referendum petitions filed September 28, 1943, and if found sufficient, submit the same to referendum of the electorate as provided in the home rule charter (R.S.1943, secs. 14-210 to 14-212). They also prayed for ancillary injunctive relief until after the election. The individual members of the city council and the Peoples Power Commission were made respondents. International Brotherhood of Electrical Workers Union, Local Union No. B-763, for itself and on behalf of all its members, employees of Nebraska Power Company, intervened praying for similar relief. Certain other legal voters and qualified electors, who are preferred stockholders of the Nebraska Power Company, also intervened for themselves and all others similarly situated, praying for like relief. They later filed a supplement to their petition in intervention in which they recognize the rule of law that an intervener must take the case as he finds it, but challenge the constitutionality of the Peoples Power Commission law (sections 14-1501 to 14-1523, R.S.1943), if it should be determined by the court that its constitutionality may be properly challenged in this action. Clarence J. Calabria, a qualified elector and taxpayer, intervened for himself and on behalf of all others similarly situated, praying that the Peoples Power Commission law, or certain sections thereof, be declared unconstitutional, and that a writ of mandamus be denied.

Appropriate answers and replies were filed and when the issues were complete the case proceeded to trial. The various pleadings were voluminous and we do not deem it necessary to recite them. Thereafter the trial court entered its decree finding generally for relators, also for the intervening Union and preferred stockholders in so far as they prayed for the same relief as relators, and awarded a peremptory writ of mandamus. However, it was found by the trial court that the questioned constitutionality of the Peoples Power Commission law was not germane to the issues, or an issue which could properly be decided in the case, and dismissed the supplemental petition in intervention of the preferred stockholders and Calabria's petition in intervention which raised that question. The decree also enjoined the city and the Peoples Power Commission from proceeding further until an election was held as ordered or until this cause was finally determined. Motions for new trial were overruled; whereupon respondents appealed separately, and the interveners, preferred stockholders and Calabria, cross-appealed. By stipulation of the parties there was filed in this court but one full transcript and bill of exceptions. The appeals and cross-appeals were argued and submitted together and this opinion disposes of all of them.

Numerous lengthy briefs were filed by the parties. Many interesting and important legal questions are ably presented therein. However, under the issues presented, we find it necessary to discuss but two of them. The first is, whether the resolution of the city council is legislative in character and subject to referendum; and the second, whether the constitutional questions raised only by interveners are germane to the issues and presented in such manner as will properly permit this court to decide them in this action. We find that the trial court erroneously decided the first question, but correctly decided the second.

Although we are of the opinion that only questions of law are presented for decision, we deem it necessary for clarity to first recite certain pertinent facts about which there is no dispute. The legislature of 1943 passed an eminent domain statute, commonly known as L. B. 204 (R.S.1943, secs. 14-1501 to 14-1523), but legislatively named the '...