State ex rel. Wright v. Lancaster Cnty. Rural Pub. Power Dist., 29814.
| Citation | 266 N.W. 591,130 Neb. 677 |
| Decision Date | 04 April 1936 |
| Docket Number | No. 29814.,29814. |
| Parties | STATE EX REL. WRIGHT, ATTY. GEN., v. LANCASTER COUNTY RURAL PUBLIC POWER DIST. ET AL. |
| Court | Supreme Court of Nebraska |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Under the act authorizing the organization of public corporations to supply electrical energy in organized districts, service in the same territory by two districts is not forbidden, where the exercise of powers and the performance of duties by one will not nullify, conflict with or materially affect those of the other. Comp.St.Supp.1935, § 70-702.
2. For the purpose of organizing a power district to supply electrical energy therein, the certificate by the department of roads and irrigation that the project is feasible, conforming to public convenience and welfare, held sufficient as against an attack by quo warranto on the ground that the service will materially affect those of another district in overlapping territory. Comp.St.Supp.1935, § 70-703.
3. “Quo warranto under our statute (Rev.St.1913, § 8328 [Comp.St.1929, § 20-21,112]) is intended to prevent the exercise of powers that are not conferred by law, and is not ordinarily available to regulate the manner of exercising those powers.” State v. Drainage District, 100 Neb. 625, 160 N.W. 997.
4. The act authorizing the organization of public corporations to supply electrical energy in organized districts does not require the department of roads and irrigation, in issuing a certificate of approval, to include a finding that services in one district will not materially affect those of another district in overlapping territory. Comp.St.Supp.1935, § 70-703.
5. In the act authorizing the organization of public corporations to supply electrical energy in organized districts, the provision that the state department of roads and irrigation “shall,” within 30 days from the receipt of the petition for incorporation, issue a certificate approving the project, if deemed feasible, the word “shall” is directory, as distinguished from a mandatory or jurisdictional meaning, where the act itself imposes duties of a judicial nature requiring a longer time. Comp.St.Supp.1935. § 70-703.
Original action in the nature of quo warranto by the State, on the relation of William H. Wright, Attorney General, against the Lancaster County Rural Public Power District and others. On relator's motion for judgment on the pleadings.
Writ of ouster denied, and action dismissed.
Wm. H. Wright, Atty. Gen., and Lester A. Danielson, of Lincoln, for relator.
C. A. Sorensen, of Lincoln, for defendants.
Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ.
This is an action in the nature of quo warranto to dissolve the organization or corporate existence of the Lancaster County Rural Public Power District. The action was brought originally in the Supreme Court by the state, on the relation of the Attorney General, and is based on alleged failure to comply with the act of 1933, authorizing the creation of public light and power districts. Laws 1933, c. 86; Comp.St.Supp.1935, §§ 70-701 to 70-716.
By that act the Legislature provided for the organization and operation of light and power systems to furnish electrical energy to customers in organized districts. To this end provision was made for acquiring the rights and property essential to feasible electric light and power projects.
The territory included in the Lancaster County Rural Public Power District consists of the 35 voting precincts in Lancaster county outside of the city of Lincoln.
In an answer to the information of relator, the proceedings on which the organization or incorporation of the Lancaster County Rural Public Power District depends are stated in detail. There is no controversy over the material facts. The issues are to be determined on a motion by relator for judgment on the pleadings.
[1][2][3] The organization or incorporation of the Lancaster County Rural Public Power District is first attacked by relator as fatally defective on the grounds that its territorial boundaries are included in the Eastern Nebraska Public Power District composed of the counties of Lancaster, Richardson, Pawnee, Nemaha, Johnson, Cass, Otoe, Sarpy, and Saunders; that both districts were in the course of organization at the same time; that territory in the two districts overlap, both planning to construct transmission lines in rural Lancaster county to furnish electrical energy in the same territory to the same persons; that, under the plans adopted by both districts, one would nullify, conflict with or materially affect the other in the exercise of corporate powers and duties, contrary to statute. These contentions of relator, though well presented, do not seem to be tenable when considered with the entire act and the organization records of the two districts. According to the statute, a public power district may be created by a petition containing the required data, by the filing thereof with the department of public works, or its successor, and by that department's certificate of approval after an investigation. Comp.St.Supp.1935, § 70-703. The act provides:
“Upon receipt of such petition it shall be the duty of said department of public works at once to make an investigation of the proposed district and of its proposed plants, systems and irrigation works and, if deemed by said department feasible and conforming to public convenience and welfare, the department, or its successor, by its secretary or executive head, shall thereupon and within 30 days from the receipt of such petition execute a certificate, in duplicate, setting forth a true copy of said petition...
To continue reading
Request your trial