435 P.2d 202 | Nev. | 1967
Thompson, C. J.:
This appeal is from an interlocutory order denying a preliminary injunction incident to an action for declaratory relief. The appeal is permissible. Vegas Franchises, Ltd. v. Culinary Workers, 83 Nev. 236, 427 P.2d 959 (1967).
John and Dorotha Ames, resident taxpayers, sought a judgment invalidating Ordinance No. 322 of the City of North Las Vegas. That ordinance creates a special assessment district for street, sidewalk, and storm sewer projects within the city
1. The Charter of the City of North Las Vegas provides that “No ordinance shall be passed as an emergency measure unless reasons for passing it as such are expressed in its preamble.” The preamble to Ordinance 322, in pertinent part reads: “* * * said Council desires now to authorize such improvements and work by this emergency measure, the reasons for passage as an emergency measure being the necessity for immediately undertaking such improvements.” That statement is nothing more than a mere declaration that an emergency exists. Cf. Joplin v. Ten Brook, 263 P. 893, 895 (Ore. 1928). The reasons therefor are not expressed. The taxpayers of the city were not advised why emergency action was needed.
Three Nevada cases bear on the issue — Penrose v. Whitacre, 61 Nev. 440, 132 P.2d 609 (1942); Carville v. McBride, 45 Nev. 305, 202 P. 802 (1922); Chartz v. Carson City, 39 Nev. 285, 156 P. 925 (1916). Penrose suggests that if the condition sought to be corrected had existed for years and was not sudden or unexpected, it is not an emergency. Id. at 457. Chartz characterizes an emergency as something “greatly out of the ordinary; something which could not be adequately met by the usual machinery of government.” Id. at 294. Indeed, Chartz stands for the proposition that a street improvement program is a “matter more of comfort and convenience than of immediate, indispensable emergency.” Id. at 296. And Carville indicates that it may be permissible for a court to go behind the council’s declaration of emergency (whether faulty or otherwise) and ascertain if an emergency in fact existed when the ordinance was passed. One must note, however, that
Assuming, without deciding, that it may sometimes be permissible for a court to go behind the legislative declaration of emergency and examine the facts, the testimony received by the court below in this case does not show a condition of emergency within the standards established by Penrose and Chartz. The City Manager testified that the improvement project was undertaken to correct flood and traffic problems. There was nothing presented to suggest to the trial court that those problems suddenly developed, were unexpected, or greatly out of the ordinary. To the contrary, the problems had existed for years. We conclude that Ordinance No. 322 was not validly enacted as an emergency measure since the preamble of that ordinance does not adequately express the reasons for the emergency as required by charter, nor did an emergency in fact exist.
2. In 1967 the legislature enacted the Public Securities Validating Act to cure defects existing in the enactment of laws providing for financing public improvements through the issuance and sale of public securities. Subject to constitutional limitations, such curative statute validates the acts and proceedings of municipal corporations. The subsequent legislative sanction is the equivalent of original authority. Harris v. City of Reno, 81 Nev. 256, 401 P.2d 678 (1965). We find no constitutional barrier in this case. Ordinance 322 was passed on August 29, 1966. A public hearing on the proposed special assessment district preceded enactment by more than a month. John and Dorotha Ames were notified of that public hearing by registered mail. They objected orally and in writing to the creation of such district. The city council was aware of their disapproval and heard their protests. The ordinance was not secretly enacted. Due process was accorded the protestants.
The special assessment district bonds have not yet been sold. The curative statute effectively covers this situation.
Affirmed.
Sec. 3 of the Act reads: “All outstanding public securities of the state and of all public bodies thereof, and all acts and proceedings heretofore had or taken, or purportedly had or taken, by or on behalf of the state or any public body thereof under law or under color of law preliminary to and in the authorization, execution, sale, issuance and payment (or any combination thereof) of all such public securities are
Sec. 4 of the Act reads: “This act shall operate to supply such legislative authority as may be necessary to validate any public securities heretofore issued and any such acts and proceedings heretofore taken which the legislature could have supplied or provided for in the law under which such public securities were issued and such acts or proceedings were taken. This act, however, shall be limited to the validation of public securities, acts and proceedings to the extent to which the same can be effectuated under the state and federal constitutions. Also this act shall not operate to validate, ratify, approve, confirm or legalize any public security, act, proceeding or other matter the legality of which is being contested or inquired into in any legal proceeding now pending and undetermined, and shall not operate to confirm, validate or legalize any public security, act, proceedings or other matter which has heretofore been determined in any legal proceeding to be illegal, void or ineffective.”