Wagner v. City of Omaha, 33156

• Decision Date: 07 November 1952
• Docket Number: No. 33156,33156
• Citation: 55 N.W.2d 490,156 Neb. 163
• Parties: WAGNER et al. v. CITY OF OMAHA et al.
• Court: Nebraska Supreme Court

Page 490

55 N.W.2d 490

156 Neb. 163

WAGNER et al. v. CITY OF OMAHA et al.

No. 33156.

Supreme Court of Nebraska.

Nov. 7, 1952.

Syllabus by the Court.

1. Annexation of territory by a metropolitan city pursuant to section 14-117, R.S.1943, is a legislative matter. However, courts have the power to inquire into and determine whether the conditions exist which authorize the annexation thereof.

2. In doing so it is not for the courts to determine what portions may be properly annexed, for the fixing of boundary lines under this authority is a legislative act.

3. Constitutional and statutory limitations on the nature and extent of the territory which may be annexed to a municipal corporation must be observed.

4. The power conferred upon municipal corporations by their charters to enact ordinances on specified subjects is to be construed strictly, and the exercise of the power must be confined within the general principles of the law applicable to such subjects.

5. A municipal corporation or its corporate authorities have no power to extend its boundaries otherwise than provided for by legislative enactment or constitutional provision. Such power may be validly delegated to municipal corporations by the legislature and when so conferred must be exercised in strict accord with the statute conferring it.

6. The burden is on one who attacks an ordinance, valid on its face and enacted under lawful authority, to prove facts to establish its invalidity.

7. Where an attempted annexation of territory to a municipal corporation is illegal, injunction is a proper remedy, and resort to a court of equity is proper either to prevent consummation of the annexation or, if it has been completed, to have the proceedings declared null and void and the corporate authorities restrained from exercising jurisdiction over the territory in question by virtue of the illegal proceedings.

Edward F. Fogarty, Edward Sklenicka, James M. Paxson, Herbert M. Fitle and James F. Green, Omaha, for appellants.

Seymour L. Smith, Theodore L. Richling and Clayton H. Shrout, Omaha, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

WENKE, Justice.

This action was brought in the district court for Douglas County by resident property owners in the area sought to be annexed to the city of Omaha by its ordinance No. 16950. The action seeks to have the ordinance declared invalid and to enjoin the city of Omaha, its officers, agents, and representatives, or any person or persons acting in their behalf, from enforcing it. The trial court decreed the ordinance to be null and void and granted the relief asked. The city filed a motion for new trial. This appeal was perfected from the overruling thereof.

The area sought to be annexed by ordinance No. 16950 is approximately 490 acres. It is located in Sections 21 and 22, Township 75 North, Range 44 West of the 5th P. M., in Douglas County, and is referred to as East Omaha, although it is not and never has been an incorporated city or village. The area sought to be annexed does not include any of the area lying between the outer edge of the East Omaha Drainage District's right-of-way and the Missouri River.

The questions raised are: Is any part of the area sought to be annexed to the city by ordinance No. 16950 agricultural lands which are rural in character, is the area sought to be annexed contiguous to the city, and is the situation one in which injunctive relief should be granted?

'In 1922, the metropolitan city of Omaha adopted as its home rule charter, chapter 116, Laws of 1921, in toto, under the provisions of article XI, section 5, of the Constitution of the State of Nebraska. The original home rule charter and amendments adopted thereto pursuant to constitutional authority appear in chapter 14, Revised Statutes 1943.' Reid v. City of Omaha, 150 Neb. 286, 34 N.W.2d 375, 377. In this opinion we will refer to the sections as the same appear in the Revised Statutes 1943.

Section 14-117, R.S.1943, is the authority pursuant to which the city passed the ordinance. It provides, insofar as here material, as follows: 'The corporate limits of any city of the metropolitan class shall be fixed and determined by the council of such city by ordinance. The city council of any metropolitan city may at any time extend the corporate limits of such city over any lands, lots, tracts, street or highway, such distance as may be deemed proper in any direction, * * *. This grant of power shall not be construed as conferring power upon the council to extend the limits of a metropolitan city over any agricultural lands which are rural in character.'

Annexation of territory under this authority is a legislative matter. However, courts have the power to inquire into and determine whether the conditions exist which authorize the lands to be annexed. Campbell v. Youngson, 80 Neb. 322, 114 N.W. 415; Winkler v. City of Hastings, 85 Neb. 212, 122 N.W. 858; Witham v. City of Lincoln, 125 Neb. 366, 250 N.W. 247.

'Constitutional and statutory limitations on the nature and extent of the territory which may be annexed to a municipal corporation must be observed.' 62 C.J.S., Municipal Corporations, § 46, p. 130.

In doing so it is not for the courts to determine what portions might be properly annexed, for the fixing of boundary lines under this authority is a legislative act. State ex rel. Davis v. City of Largo, 110 Fla. 21, 149 So. 420; City of Houston v. State ex rel. City of West University Place, 142 Tex. 190, 176 S.W.2d 928.

The home rule charter adopted by the city of Omaha is a grant as distinguished from a limitation of power. Being a grant of power the charter is to be construed according to the same rules as a legislative act containing the same provisions in determining what authority is thereby granted the city government. Consumers' Coal Co. v. City of Lincoln, 109 Neb. 51, 189 N.W. 643; Falldorf v. City of Grand Island, 138 Neb. 212, 292 N.W. 598.

'A municipal corporation is a creature of the law established for special purposes, and its corporate acts must be authorized by its charter and other acts applicable thereto. It therefore possesses no power or faculties not conferred upon it, either expressly or by fair implication, by the laws which created it or by other laws, constitutional or statutory, applicable to it.

'The power conferred upon municipal corporations by their charters to enact ordinances on specified subjects is to be construed strictly, and the exercise of the power must be confined within the general principles of the law applicable to such subjects.' Reid v. City of Omaha, supra. See, also, Interstate Power Co. v. City of Ainsworth, 125 Neb. 419, 250 N.W. 649.

'A municipal corporation or its corporate authorities have no power to extend its boundaries otherwise than provided for by legislative enactment or constitutional provision. Such power may be validly delegated to municipal corporations by the legislature, and when so conferred must be exercised in strict accord with the statute conferring it.' 37 Am.Jur., Municipal Corporations, § 24, p. 640.

As stated in Horbach v. Butler, 135 Neb. 394, 281 N.W. 804, 805: 'In the absence of a showing that the city council acted outside of their granted powers, or of a showing that they abused the discretion lodged with them, in the exercise of a granted power, the finding of the city council is conclusive.'

The burden of doing so was on appellees. As stated in 6 McQuillin, Municipal Corporations (3d ed.), § 20.08, p. 18: 'The burden is on one who attacks an ordinance, valid on its face and enacted under lawful authority, to prove facts to establish its invalidity. The burden of establishing a want of a rational basis for an ordinance and that it is unreasonable and arbitrary is on the one asserting the same. Likewise, the burden of proof to sustain a right to equitable relief against the enforcement of an ordinance on the ground that it is invalid rests upon the complainant; the reason is that the presumption is in favor of the validity of the ordinance.'

One of the three questions raised by the appeal is, is the area sought to be annexed contiguous...