17 N.W.2d 448 | Neb. | 1945
Plaintiffs Charles E. May and Consumers Public Power District filed separate amended petitions in the district court for Buffalo county, Nebraska, to permanently enjoin defendant City of Kearney and its officials from issuing bonds for the purpose of raising money to tender an award made by a court of condemnation in proceedings brought by the city against plaintiff Consumers Public Power District as provided by section 70-650, R. S. 1943, and chapter 19, art. 7, R. S. 1943, wherein the city sought to acquire the electric light and power plant and distribution system serving the inhabitants of the city but belonging to the district. Plaintiff Charles E. May, a resident, legally qualified voter and taxpayer of the city of Kearney for more than ten years, and a user of electricity supplied by the district, and two other equally qualified persons petitioned for an injunction on behalf of themselves and all others similarly situated. The two cases were consolidated for trial in the district court and decision by this court. After hearing upon the merits the trial court denied an injunction and dismissed plaintiffs’ separate amended petitions. Plaintiffs,
Preliminary to a decision of plaintiffs’ first contention we find it necessary to recite some pertinent facts. The record discloses that on March 2, 1942, the city council passed an ordinance providing for submission to the qualified electors .at the next regular city election the question whether the city of Kearney, which did not then own any electric light and power plant, should acquire the system owned by Consumers by use of procedure provided in chapter 19, art. 7, R. S. 1943. The electorate of the city approved the proposal by a majority of 27 votes. The result was duly certified to this court and three district judges were appointed as a court
Defendant city asserts that Consumers as condemnee cannot challenge the proceedings by which funds are raised or attack the validity of the bonds, its only concern being to receive the money to which it is lawfully entitled for the property'. The applicable rule has been stated in Central Power Co. v. Nebraska City, 8 Cir., 112 Fed. 2d 471, by use of the following language: “The laws of Nebraska make adequate provision for the raising of money by cities to pay for property acquired under condemnation and since the Company must receive its payment before the City can take possession, the Company may not in this proceeding question how the City is to obtain the money with which it will pay. See Slocum v. City of North Platte, 8 Cir., 192 F. 252; Village of Oshkosh v. Fairbanks-Morse & Co., 8 Cir., 8 F. 2d 829.” While we follow this rule and conclude that Consumers has no right to raise the question of the validity of the bonds, it is not disputed but conceded that plaintiff May, representing himself and all others similarly situated, does have a legal right to do so.
The city also contends that it has the power by virtue of
It seems clear that the city is attempting to acquire an electric light and power plant and pay for it by the issue and sale of what is designated as negotiable obligation bonds for the payment of which the city has, without favorable vote of the electorate, pledged and hypothecated the revenues and earnings of the plant with the taxing power as collateral security. In other words, the city is attempting to do indirectly that which it cannot do' directly.
Turning to the statutes involved and their interpretation, we find that the opinion of this court in Interstate Power Co. v. City of Ainsworth, 125 Neb. 419, 250 N. W. 649, dis
Chapter 19, art. 7, consisting of sections 19-701 to 19-707, inclusive, Comp. St. 1929, was enacted in 1919 and existent when Interstate Power Co. v. City of Ainsworth, supra, was decided. In 1941 these sections were repealed in their entirety but with the title extended, amended to include villages, and, supplemented with validity, savings and emergency clauses, they were immediately reenacted verbatim as theretofore and now appear as sections 19-701 to 19-707, inclusive, R. S. 1943. Section 19-704, R. S. 1943, relied upon by the city here, provides in part as follows: “ * * * the city or village authorities, without vote of the people, shall have the power, if necessary, to issue and sell
But be that as it may, after the decisions in Interstate Power Co. v. City of Ainsworth, supra, and City of Mitchell v. Western Public Service Co., supra, the legislature of 1935 clarified the situation by enacting what is now section 18-412, R. S. 1943. It provides: “Supplemental to any existing law on the subject, and in lieu of the issuance of g-eneral obligation bonds, or the levy of taxes upon property, as by law provided, any city or village within the state of Nebraska may construct, purchase, or otherwise acquire, an electric light and power plant, * * * and real and personal property needed or useful in connection therewith, and pay the cost thereof by pledging and hypothecating- the revenue and earnings of any electric light and power plant, * * * owned or to be owned by such city or village. In the exercise of the authority granted in this section, any such city or village may issue and sell revenue bonds or debentures and enter into such contracts in connection therewith as may be proper and necessary. Such revenue bonds or debentures shall be a lien only upon the revenues and earnings of the electric light and power plant, * * * owned or to be owned by such city or village. No- city or village shall pledge or hypothecate the revenue and earnings of any electric light and power plant, * * * nor issue revenue bonds or debentures, as authorized by this section, until the proposition relating thereto has been submitted in the usual manner to the qualified electors of such city or village at a general op special election and approved by a majority of the electors voting on the proposition submitted; * * * . The requirement herein of a vote of the electors, however,
Clearly these several acts and decisions heretofore discussed are all related and form an integrated whole of the law from which we arrive at decision upon the first question presented here. In the case at bar the language of the bonds themselves clearly and unequivocally pledges and hypothecates the revenue and earning-s of the plant in the very language of the statute which prohibits it, and in direct contravention of the legislative power conferred, since it was done after a substantial majority of the qualified electors of the city voting thereon had at an election disapproved and defeated the proposal when lawfully submitted.
We find no authority in the statute or other precedent supporting the validity of the bonds proposed to be issued. We can only conclude for the reasons heretofore stated that they are invalid. In such a case the applicable rule is that, “When bonds or other evidences of indebtedness are about to be issued by public officers illegally or without complying with the statute authorizing their issue, equity has jurisdiction to grant an injunction, * * * . Where the law requires that the question shall be submitted to popular vote; an issue of bonds without such a vote will be enjoined.” 32 C. J., sec. 421, p. 268.' See, also, Cook v. City of Beatrice, 32 Neb. 80, 48 N. W. 828.
A declaration of invalidity of the proposed bonds for the reasons above stated, however, does not give plaintiff May all of the relief to which he is equitably entitled or completely determine the issues involved since in any event the city still claims the right to issue general obligation bonds as permitted by section 19-704, R. S. 1943, and will do so unless restrained by the court. In view of this situation we find it necessary to determine whether or not because of certain representations, promises and pledges made by the mayor and city council the city is now estopped from issu
The record here discloses that the election upon the question of whether Kearney should purchase Consumers’ property was held on April 7, 1942. The mayor testified that some time prior to the election he and a group of men being affirmatively interested had banded themselves together as interested Kearney citizens who desired to acquire Consumers’ property for the good of the city of Kearney and its citizens. He testified that they held several meetings which were attended by himself, several members of the council and others to talk over and perfect plans to successfully carry the election. When asked to recall the names of the persons attending these meetings he was able to name but one man who was not either a member of the city council
On February 17, 1942, the mayor, who had then served as a member of the city council eight years and as mayor approximately three years, appeared with the city water commissioner on a prepared program over radio station KFGW to discuss and enlighten the people upon the question of whether the city of Kearney should purchase Consumers’ power interests in that city. They were introduced as representing the city council. They were asked a number of previously prepared questions by two disinterested Kearney citizens. Some of these questions and answers are important here. For example: “(Q.) Is it the opinion of the Mayor, Council and Board of Public Works that Kearney should own its own electric distribution system? (A.) Yes, after an intensive study carried on for more than a year it has been concluded that it will be extremely advantages (advantageous) for the City of Kearney to own and operate its own electric distribution system. * * * (Q.) If the value of the electric distribution system, determined by the Court, is satisfactory to the Mayor, Council and Board of Public Works and they decide to buy the property how
On March 28, 1942, a large newspaper advertisement appeared in the Kearney Hub, a daily newspaper published and circulated generally in the city of Kearney. Parts of it are important here. Across the top in large type appeared the question, “SHALL KEARNEY ACQUIRE ITS ELECTRIC DISTRIBUTION SYSTEM?” Thereafter in smaller type appeared the following: “WHAT HAS BEEN DONE Your Mayor and Council have called an election to submit to the voters the question of determining the fair value of the property by a court of appraisers * * * WHAT WILL BE DONE If you vote YES (x) for condemnation of the electric system in Kearney your MAYOR and COUNCIL will: 1. Attempt again to negotiate with Consumers for a fair and reasonable price. 2. If negotiations fail, the condemnation court will set a value on the property. 3.
On April 6, 1942, another advertisement of large proportions was likewise published in the same newspaper. Parts of it are also important. In large type appeared these words: “THE ELECTRIC QUESTION SIMPLIFIED. Would you like to know what the courts say is a fair price for this property? This is the only question which ivill be decided tomorrow! Vote (x) yes * * * All other factors involved will be voted on at another election. Vote ‘yes’ to get this disinterested valuation. That is why we have courts. Hear Mayor Mattson tonight. 8:15 P. M. over KGFW This ad paid for by interested Kearney citizens.”
On April 6, 1942, at 8:15 p. m., as above advertised, the mayor spoke on the question over radio station KGFW. He stated in part: “Then when the court establishes that fair price, the City Council have pledged themselves to again submit to the voters to see if they want to pay it. This silly propaganda that ‘You are handing your Council a blank check’ or that ‘They don’t need another election, but will go right ahead and buy it’ should not be talk of intelligent people. What’s wrong? Is there no honor among men any more ? I promise you as long as I am your Mayor we will stand by our promise. * * * Remember this, that all we are doing in tomorrow’s election is to ask the courts to set a fair price. When that -price is determined, the people of Kearney will be given full opportunity to decide in another election tohether or not they want to pay it. If you at that second election decide to take it over, it toill be paid for through revenue bonds. For the information of some not acquainted with the term, a ‘revenue bond’ is a bond issued against the earnings of the system. These bonds will all be paid out of the earnings of our electric system, and not
As heretofore stated, the next day the electorate voted favorably on the proposition thus submitted to them by a majority of 27 votes; the result was certified to this court; and three district judges were appointed as a court of condemnation, who, after hearing, entered an award from which Consumers took an appeal to the district court. On April 6, 1943, the city council by appropriate official resolution submitted to the electorate, as they had previously promised and pledged themselves to do, the proposition of whether the council should have the power and be authorized to issue revenue bonds (as provided in section 18-412, R. S. 1943) for the purpose of tendering and paying the award. This proposition was defeated at the election by a majority of 560 votes.
Thereafter on September 7, 1943, the city council, in violation of its previous promises and pledges, authorized by ordinance the issue of what it calls “general obligation bonds” for payment of which they pledged both the full faith and credit and resources of the city, and, contrary to law and in violation of the will of the people, pledged and hypothecated the revenues and earnings of the plant and agreed to annually levy a tax on all the taxable property in the city sufficient in amount to make up' any deficiency in the earnings of the plant necessary to promptly pay the interest and create a sinking fund to pay the principal when it becomes due.
On September 8, 1943, the then mayor vetoed the ordinance, his first reason given therefor being, “The City Administration which promoted this condemnation originally, pledged to the voters of Kearney if they voted to condemn the electric distribution system in Kearney they would proceed to do ONE thing — have the price determined; that if the system were ever purchased by the City it would be paid for by REVENUE BONDS (not general obligation bonds) and that the city administration would not issue bonds until the people voted to do so. The voters were permitted to vote on the bond question last April and they de
Of course the general rule is that, “No member of a city council or the mayor * * * , each acting separately as an individual, can bind the city by a contractual obligation creatable only by official action of the city council, nor can any one of them ratify or reinstate a void city contract or estop the city from denying the validity thereof.” Helleberg v. City of Kearney, 139 Neb. 413, 297 N. W. 672. However, such a situation is not presented here. Plaintiff May represents himself as a voter and taxpayer who brings the action for himself and all others similarly situated as provided in section 25-319, R. S. 1943. Therefore, he represents both himself and the public, the electorate and taxpayers of the city of Kearney. As we view it consideration must be given to the entire transaction or proceeding to acquire and pay for Consumers’ property, and no part of such transaction or proceeding is or can be of itself decisive of the question of estoppel. Precedent official action followed by promises and pledges given in the similitude of authority and subsequently receiving official acquiescence and approval is decisive of the question of estoppel.
The general rule is that while ordinarily a municipality may not be estopped by unauthorized conduct, representations, promises or pledges of the officers, it may, within the limitation of its legal powers, be estopped by its official acquiescence in, and approval of, acts originally unauthorized. 31 C. J. S., sec. 142b, p. 419.
In City of Grand Island v. Willis, 142 Neb. 686, 7 N. W. 2d 457, this court placed its approval upon the following statement: “As a usual thing, the doctrine of equitable es
Neither will it avail the city under the facts presented to contend that the promises and pledges of the mayor and city council concerned the future as distinguished from either the past or the present. In this connection the rule is that while the doctrine of estoppel by representation is ordinarily applicable only to representations as to. facts either past or present, and not to representations or promises concerning the future, there are well recognized exceptions where to enforce the rule would perpetrate a fraud or cause injustice; and this doctrine of promissory estoppel has particular application when the representations relate to an intended abandonment of an existing right, and is made to influence others who have in fact been influenced
In a broad sense “estoppel is a bar which precludes a person from denying the truth of a fact which has in contemplation of law become settled by “the acts and proceedings of judicial or legislative officers, or by the act of the party himself, either by conventional writing or by representations, express or implied, in pais.” 31 C. J. S., sec. 1, p. 191.
“ * * * the wisdom and justice of the principle of estoppel, especially estoppel in pais, * * * are generally recognized, the view being founded on principles of equity, morality, and justice, and in accord with good conscience, honesty, and reason; and, as such, the doctrine subserves its true purpose as a plain, practical, fair, and necessary rule of law.” 31 C. J. S., sec. 3, p. 193.
“Equitable estoppels operate as effectually as technical estoppels. They cannot in the nature of things be subjected to fixed and settled rules of universal application, like legal estoppels, nor hampered by the narrow confines of a technical formula. So, while the attempted definitions of such an estoppel are numerous, few of them can be considered satisfactory, for the reason that an equitable estoppel rests largely on the facts and circumstances of the particular case, and consequently any attempted definition usually amounts to no more than a declaration of an estoppel under'those facts and circumstances. * * * The following, however, may be ventured as the sum of all cases: That a person is held to a representation made or a position assumed, where otherwise inequitable consequences would result to another who, having the right to do so under all the circumstances of the case, has, in good faith, relied thereon. Such an estoppel is founded on morality and justice, and especially concerns conscience and equity.” 10 R. C. L., sec. 19, p. 689. See, also, 31 C. J. S., sec. 59, p. 236.
That the electorate taxpayers relied upon the promises and pledges made by the mayor and city council in the case
Finally, as this court said in State ex rel. Cox v. McIlravy, supra, “The doctrine of estoppel in pais is applicable, and simply used to promote justice, equity and fair dealing between the parties involved. It resolves itself into a question of justice and equity to prohibit fraud and inequity, and as a general rule, when equitable estoppel is once established by the evidence or the facts in a case, it operates as effectively as á deed or a record. It is the law that estoppel is commensurate with the thing represented and operates to put the party entitled to its benefits in the same position as if the thing represented were true.”
Therefore, we are of the opinion that the circumstances appearing in the case at bar bring the city of Kearney squarely within the rules above stated, and we conclude that the city is estopped to issue general obligation bonds at this time, its right and power to proceed further and do so, being thereby invalidated until another election is held and other required steps are taken as provided in chapter 19, art. 7, R. S. 1943.
It is the contention of the appellants, however, that the condemnation statute, sections 19-701 to 19-707, inclusive, R. S. 1943, is unconstitutional and that the primary right relied upon in the instant case for the issuance of bonds by the city of Kearney is dependent upon the validity of this statute. While we have hereinbefore held that the bonds which the city proposed to issue are absolutely void for want of statutory authorization and irregularities occurring in the conduct of the municipal election at which they were purported to have been authorized, the question whether any valid bonds could be issued by the city in payment for the property here sought to be condemned is an issue properly raised. Whether the city of Kearney is powerless to proceed further or whether it may correct its proceed
The city contends that Consumers, having accepted the benefits and enjoyed the privileges afforded by section 70-'705, R. S. 1948, is estopped to attack the contitutionality'of the act under which it was organized and now exists. This contention is fully disposed of in State ex rel. Johnson v. Consumers Public Power District, 143 Neb. 753, 10 N. W. 2d 784, wherein it was held that “The mere fact that a corporation is organized under a statute does not estop it to deny the constitutionality of a provision of the statute which constitutes a distinct, separable legislative enactment, the elimination of which would leave in full force and effect the provisions under which the corporation was organized.”
In determining questions of constitutionality the nature and form of the act become important. The length of the statute prevents any extensive quotation of its provisions. We will consequently summarize its contents to the extent necessary for the determination of the issues here involved.
The act conferred upon the city of Kearney, and other cities of its class, the power to acquire by eminent domain, after an affirmative vote of the electors, any electric light and power plant located or operating within such city. Upon the holding of an election authorizing the taking and acquiring of the property by the required vote, the city council is required to certify the result to the supreme court of the state. The supreme court is then required within thirty days thereafter to appoint three district judges from three of the judicial districts of the state who shall constitute a court of condemnation for the ascertainment and finding of the value of the plant, works or system. The condemnation court thus 'formed is empowered to require the giving of notice, the filing of pleadings, the taking of evidence, and to perform all the duties of condemnation com
The act does not provide for the institution of condemnation proceedings in a duly constituted court or confer the power upon such a court to determine both the legality of the taking and just compensation. This court has held on three occasions that the court of condemnation created by the act was not a court within the meaning of the Constitution. In re Appraisement of Omaha Gas Plant, 102 Neb. 782, 169 N. W. 725; City of Mitchell v. Western Public Service Co., 124 Neb. 248, 246 N. W. 484; In re Application of City of Sidney, 144 Neb. 6, 12 N. W. 2d 104. While this court is committed to- this view, the suggestion has been advanced that material considerations have been overlooked. It may be argued that the decision in In re Appraisement of Omaha Gas Plant, supra, was made under the provisions of the 1875 Consitution, at which time section 1, art. VI provided: “The judicial power of this state shall be vested in a supreme court, district courts, county courts, justices of the peace, police magistrates, and in such other courts inferior to the district courts as may be created by law for cities and incorporated towns.”
The decision contained the following language: “The board thus constituted cannot be a ‘court’ under the Constitution of the state, since the legislature has no power to constitute courts other than those named in that instru
Appellants contend that the act is unconstitutional for the further reason that it fails to provide the owner of the property a judicial hearing on the matter of just compensation. As we have heretofore stated, that act provides for a full hearing before the condemnation court, a tribunal lacking the elements of a judicial court. An appeal to the district court is provided' for, the review being limited to the record made by the condemnation court. We think appellants are in error in assuming that a full and complete hearing on all 'phases of the valuation of and damages to property taken under the power of eminent domain must be had in a judicial court.
An authoritative text writer states the rule as follows: “In those states in which a jury is not required by the constitution in eminent domain proceedings, the owner is entitled to a hearing conducted in some fair and just manner before an impartial judicial tribunal, and a chance to put in evidence before such tribunal of the value of his proper
In United States v. Jones, 109 U. S. 513, 3 S. Ct. 346, the court said: “The proceeding for the ascertainment of the value of the property and consequent compensation to be made, is merely an inquisition to establish a particular fact as a preliminary to the actual taking; and it may be prosecuted before commissioners or special boards or the courts, with or without the intervention of a jury, as the legislative power may designate. All that is required is that it shall be conducted in some fair and just manner, with opportunity to the owners of the property to present evidence as to its value, and to be heard thereon.”
In Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 17 S. Ct. 718, the court said: “Neither can it be said that there was not ‘due process of law’ in these condemnation proceedings. It is not essential that the assessment of damages be made by a jury. Such award may be made by commissioners, at least where there is provision for a review of their proceedings in the courts.”
In Backus v. Fort Street Union Depot Co., 169 U. S. 557, 569, 18 S. Ct. 445, the court said: “It is within the power of the State to provide that the amount shall be determined in the first instance by commissioners, subject to an appeal to the courts for trial in the ordinary way; or it may provide that the question shall be settled by a sheriff’s jury, as it was constituted at common law, without the presence of a trial judge. These are questions of procedure which' do not enter into or form the basis of fundamental right. All that is essential is that in some appropriate way, before some properly constituted tribunal, inquiry shall be made as to the amount of compefisation, and when this has been provided there is that due process of law which is required
In Crane v. Hahlo, 258 U. S. 142, 42 S. Ct. 214, the court in discussing this subject said: “The right of the plaintiff in error to damages having been established by the decision in 221 N. Y. 283, supra, there remained only the problem of determining the amount of the award which should be made and the manner of making it, and the reference of such a question, especially in eminent domain proceedings, to a commission, or board, or sheriff’s jury, or other nonjudicial tribunal, was so common in England and in this country prior to the adoption of the Federal Constitution that it has been held repeatedly that it is a form of procedure within the power of the State to provide and that when opportunity to be heard is given it satisfies the requirements of due process of law, especially when, as in this case, a right of review in the courts is given. * * * No one has a vested right in any given mode of procedure * * * and so long as a substantial and efficient remedy remains or is provided due process of law is not denied by a legislative change. Oshkosh Waterworks Co. v. Oshkosh, 187 U. S. 437, 439.”
In Missouri ex rel. Hurwitz v. North, 271 U. S. 40, 46 S. Ct. 384, the general rule was stated in the following language : “It has been so often pointed out in the opinions of this Court that the Fourteenth Amendment is concerned with the substance and not with the forms of procedure, as to make unnecessary any extended discussion of the question here presented. The due process clause does not guarantee to a citizen of a State any particular form or method of state procedure. Its requirements are satisfied if he has reasonable notice, and reasonable opportunity to be heard and to present his claim or defence, due regard being had to the nature of the proceedings and the character of the rights which may be affected by it.”
In State ex rel. Oregon R. & N. Co. v. Fairchild, 224 U. S. 510, 32 S. Ct. 535, the precise point raised by appellants is discussed in the following language: “Having been given
It seems to us that the hearing provided before the court of condemnation with a right of review in the courts on the record, meets all the requirements of due process in the fixing of the compensation in a condemnation proceeding. An impartial tribunal has been established to determine the compensation, notice to the interested parties is provided for, an opportunity to be heard is afforded and an appeal to the courts provided. This, under all the decisions, constitutes due process. It must be borne in mind that due proc
It is the further contention of appellants that the condemnation act, in order to meet the requirements of due process, must itself provide for notice and hearing on the question of the legality of the proceeding and that the owner cannot be forced to resort to collateral attack to secure his constitutional rights.
A discussion of this subject necessitates an understanding of the nature of the power of eminent domain. It is an attribute of sovereignty, inherent in a sovereign state whether or not reference is made to it in the Constitution of the state. In other words, the power of a sovereign state to take property, or to authorize its taking for a public use, rests upon necessity because there can be no effective government without it. The power exists independent of the Constitution, the provision of the Constitution with reference thereto being a limitation on the exercise of the power, and in no sense of the word a grant of power. In former times the right of a sovereign state to take for a public purpose was absolute, and property could be taken without compensation being paid and without requiring the intervention of a court to afford effective use of the power. The exercise of the power of eminent domain has been limited in this state by a constitutional requirement that just compensation shall be paid for all property taken or damaged. Const., art. I, sec. 21. Consequently, compensation for property taken or damaged in the exercise of the right of eminent domain, unless the amount is agreed upon must be determined in accordance with the due process clauses of the state and federal Constitutions, but otherwise judicial
In Vinegar Bend Lumber Co. v. Oak Grove & Georgetown R. Co., 89 Miss. 84, 105, 43 So. 292, a situation on both the facts and the issues presented were very similar to the case at bar. The court said: “On .a review of the whole chapter on the subject of eminent domain, we unhesitatingly arrive at the conclusion that the legislature never intended to create a tribunal of full jurisdiction to try any and all issues that might be raised on the subject of the right to condemn. The court created by this chapter is a special court, created for a special purpose, having an exceedingly limited jurisdiction, exercising no judicial functions, and clothed with the power' to try the only issue that is confided to it by the statute; and that issue is, singly and solely, to fix the compensation which shall be paid to the landowner for his land. In truth, sec. 1680 declares that it is a special court. The chapter itself presupposes that the right to condemn property exists, and there is no provision made in the whole chapter on this subject giving to the eminent domain court the power to adjudicate the issue as to whether or not the right to exercise the power of‘eminent domain does or does not exist. The sole and only power conferred by this chapter, from its first section to its last, is the right, and the rig-ht only, to ascertain and fix compensation for the taking of the land where the right to do so exists. * * * Since neither the constitution nor the statutes provide a particular tribunal in which to try the question of whether or not the use for which private property is to be taken is a public or private use, and since it is made a' judicial question by the constitution, when it is sought to try the question it must be by injunction, and in the chancery court, enjoining the entry upon or appropriation of the land, because the use for which land is sought to be tak
In Riley v. Charleston Union Station Co., 71 S. C. 457, 482, 51 S. E. 485, the court in passing on a similar question said: “The first* second, fourth and fifth exceptions make the point that the act under which the defendant seeks to condemn plaintiff’s property is unconstitutional in that no tribunal is provided for the determination of any question that may be made by the land owner as to the right and power of the defendant company to take plaintiffs’ property. This contention cannot be sustained. While it is true, the condemnation statutes provide no' special tribunal, except for the determination of the amount of compensation to be paid, nevertheless the regular machinery of the Courts is available for the determination of any issue with respect
Summarizing the reasoning of the foregoing authorities, we come to the following conclusion: The power of eminent domain is a sovereign power inherent in the state irrespective of constitutional provisions, which in former times was absolute; that the provisions of our Constitution have the effect only of limiting the exercise of the power; that the provisions of the Constitution requiring the payment of a just compensation for property taken or damaged must comply with the requirements of the due process clause; that the power of the state to take or to delegate its power to take- has not been limited by the Constitution and consequently the legislature can lawfully provide the method of taking without the aid of the other departments of government; that a contest of the right to take may properly be left to other appropriate legal action in the same manner as if the condemner proceeded without any statutory authorization; and that a statute providing due process on the matter of just compensation and which is silent on the question of affording a' hearing on the right to take meets all the requirements of due process under the state and federal Constitutions. The sovereign nature of the power of eminent domain is such that the function of the courts is limited to a determination of whether constitutional provisions have been violated, and if they have not, the right of the legislature to exercise it in any manner it sees fit must be sustained. If the property be taken irregularly, or if the taking is not for a public purpose, the owner can proceed against the taker the same as any other trespasser by injunction, ejectment or any other available remedy. We are of the opinion, therefore, that the failure to provide in the
We have examined plaintiffs’ contention that the statutes violate the seventh and 22d interdictions of section 18, art. III, Nebraska Constitution, as class or special legislation. As to the seventh interdiction we reaffirm the rule stated in City of Mitchell v. Western Public Service Co., supra, that, “The act is not a special act regulating the practice of courts of justice prohibited by the seventh interdiction of section 18, art. Ill of the Constitution.” As to the 22d interdiction the rule is that it prohibits class legislation which does not operate equally and uniformly upon all members of the class brought within its operation. In this connection the court has held that, “The legislature may make a reasonable classification of persons, corporations and property for purposes of legislation concerning them, but the classification must rest upon real differences in situation and circumstances surrounding the members of the class, relative to the subject of the legislation, which render appropriate its enactment; and to be valid the law must operate uniformly and alike upon every member of the class so designated.” State ex rel. Taylor v. Hall, 129 Neb. 669, 262 N. W. 835. See, also, Steinacher v. Swanson, 131 Neb. 439, 268 N. W. 317; Cox v. State, 134 Neb. 751, 279 N. W. 482; Department of Banking v. Foe, 136 Neb. 422, 286 N. W. 264; Eckerson v. City of Des Moines, 137 Ia. 452, 115 N. W. 177; 29 C. J. S., sec. 212, p. 1132. We find that the classification designated in chapter 19, art. 7, R. S. 1943, is reasonable and not inimical to section 18, art. III, Nebraska Constitution.
It is already well established that the act does not violate the doctrine of the separation of powers. Const., art. 2,
We come to the conclusion that the act complies with all requirements of the Constitution which have been called to our attention. We think the attacks upon its validity made by the appellants are without merit.
The judgment is hereby reversed and the cause remanded with directions that a decree be entered by the trial court in conformity with this opinion.
•Reversed, with directions.