Updike v. City of Omaha (In re Appraisement of Omaha Gas Plant), 20757.

• Court: Supreme Court of Nebraska
• Writing for the Court: LETTON
• Citation: 102 Neb. 782,169 N.W. 725
• Parties: IN RE APPRAISEMENT OF OMAHA GAS PLANT. UPDIKE v. CITY OF OMAHA ET AL.
• Docket Number: No. 20757.,20757.
• Decision Date: 30 November 1918

102 Neb. 782
169 N.W. 725

IN RE APPRAISEMENT OF OMAHA GAS PLANT.
UPDIKE
v.
CITY OF OMAHA ET AL.

No. 20757.

Supreme Court of Nebraska.

Nov. 30, 1918.

[169 N.W. 725]

Syllabus by the Court.

The ascertainment by appraisers, or commissioners, of the amount of damages to be awarded to one whose property has been taken, or damaged, for public use, in the exercise of eminent domain, is a function judicial in its nature. It is only a preliminary step in the ascertainment of damages, unless the parties interested agree to accept the award.

Under article 2 of the Constitution, providing for the separation of the executive, legislative, and judicial departments of the government, the Legislature has no power to compel the exercise of purely executive duties by the courts.

The board of appraisers created by sections 4a-4f, c. 87, Laws 1917, though termed a “court of condemnation,” does not constitute a court under the Constitution and laws of this state, although such board exercises functions judicial in their nature. The appointment of the members of such a “court of condemnation” by this court, or the Chief Justice thereof, under the statute referred to, pertains to a judicial proceeding and is within the power of the Legislature to provide for.

The Legislature may designate a class from which such appraisers may be chosen.

Chapter 87, Laws 1917, so far as it provides for the appropriation of gas works for public uses, is supplemental to chapter 46 (sections 4067-4403), Rev. St. 1913, relating to municipal corporations, and is not invalid as a violation of the Constitution relating to the manner in which statutes may be amended.

In the matter of the appraisement by court of condemnation of Omaha Gas Plant, with petition by Nelson V. Updike against City of Omaha and Omaha Gas Company. Petition denied.

The Legislature of 1917 passed an act supplemental to chapter 46 of the Revised Statutes, relating to municipal corporations of the metropolitan class, and amending and repealing certain specified sections of that act as amended in 1915. Laws 1917, c. 87. After conferring upon such city additional powers to those theretofore granted, sections 4a-4f, inclusive, provide a means for the condemnation and appropriation of certain public utilities. These sections provide that after the voters of the city have at an election voted in favor of acquiring any “water works, water works system, gas plant, electric light plant, or electric light and power plant, or street railway” the city shall, by the power of eminent domain, have the right to acquire any such works, plant, or system; that the result of the election shall be certified immediately to the Supreme Court, and that court, or the Chief Justice thereof, if the court is not in session, shall within 30 days appoint three district judges, one of whom shall be from the district in which the city is located, and said judges “shall constitute a court of condemnation for the ascertainment, and finding of the value of any such plant, works, or system.”

The Supreme Court is directed to make an order requiring the judges to attend as a court of condemnation at the county seat, at the time stated in the order. Power is conferred upon that body to fix a time for hearing, to give notice thereof to all parties interested, to summon and swear witnesses, and to require the production of books and papers deemed necessary for the ascertainment of the value. It may appoint a reporter to report and preserve all evidence introduced before it. It is then provided:

“Such court shall have all the powers and perform all the duties of commissioners in the condemnation and ascertainment of the value and in the making of an award of all property of any such works, plant or system.”

It is also provided that the city shall have the right, after the finding of the value, to elect to abandon such condemnation proceedings, and, if it does not so elect, the owners of the property may appeal from the award to the district court, where the matter shall be heard upon the evidence taken before the commissioners.

The result of an election held upon a proposition for the purchase of the Omaha gas plant by the city of Omaha, showing that the proposition carried by a large majority, was duly certified to the Chief Justice, and three judges of the district court were appointed under the provisions of the statute. A petition to vacate the order was afterwards filed by Nelson B. Updike, a resident and taxpayer of the city of Omaha, and a hearing had thereupon. This petition sets forth that the statute is unconstitutional; that this court has no jurisdiction to make the order, and the judges appointed are without power to act, and, if allowed to proceed, their acts will be null and void; that the attempt to create a court is in violation of section 1, art. 6, of the Constitution, limiting the power of the Legislature to create courts other than those named therein; that, if the “court of condemnation” is not a court within the meaning of the Constitution, then under article 2 of the Constitution, the Supreme Court is without...