*1 appellants. error, finding no we affirm
Having the record and reviewed establishing boundary line at the order the district court’s survey exhibit conducted place appellees’ described in Simonds.
Affirmed. Sarpy County, Nebraska, and David School District No. Kentsmith, appellants, K. of Bellevue and Bellevue appellees. Sarpy County, Nebraska, District, School
400 N.W.2d229 23, 1987. January 85-639. Filed Cline, Wright A. L. Bruce and Kathleen Jaudzemis of Williams, Oldfather, Wright, appellants. Johnson & *2 Rice, City Attorney, City E. appellee
John Bellevue for of Bellevue. Adams, G. appellee
Dixon for Bellevue School District. C.J., Krivosha, Boslaugh, White, Caporale, Shanahan, JJ., D. J. Grant, Cheuvront, Krivosha, C. J. by presented appeal
The this is whether the provisions of 79-801(4) (Cum. Supp. Neb. Rev. Stat. 1984) any alleged by unconstitutional for of the various reasons appellants, County the district Sarpy of County, David K. Kentsmith. The district court Sarpy for Nebraska, found, effect, in that did not violate either the U.S. Constitution or the Constitution of the State of by sustaining Nebraska demurrers filed the appellees, the Bellevue School District and the of Bellevue. For reasons hereinafter, particularly more set out judgment the of the court district is affirmed.
Section 79-801(4) provides as follows: application approval
Whenever an plat for of a final or replat territory is filed for which lies within the city of the or first second class not lie within the boundaries V of Class IV or city the affected school board district or its representative and the affected school board or boards serving territory subject plat to the final replat or or representative days their thirty shall meet within of such application negotiate good in faith as to which district territory shall serve the platted replatted any effective upon date of transfer based the criteria prescribed in (2) subsection of this section. agreement prior
If no has been reached approval to the plat replat, territory final shall transfer to the upon of the first or second class filing plat of the final unless an affected district petitions days approval the district ten court plat replat enjoining the final an and obtains order requiring transfer and the affected school boards to negotiation. upon continue The court shall issue the order finding board affected or boards have not negotiated good in on faith based one or more of the (2) criteria listed subsection this section. district require surety court shall no bond or other as condition agreement preliminary injunctive relief. If no reached after order court and negotiations, platted replatted territory additional shall become the school district of the first or second class. 79-801(2) provides
Section part: During process negotiation, the affected school following boards shall consider the criteria: (a) The educational needs of the students in the affected districts; *3 (b) upon The economic impact the affected school districts;
(c) Any common interests between the annexed or platted area the affected school districts and the zoning community jurisdiction area; which has over the (d) Community planning. educational The undisputed evidence is that district 46 and No. the Bellevue School District are both Class III school districts Nebraska, County, located in Sarpy and share a common boundary City city class, line. The of Bellevue is a of first the zoning jurisdiction City of Bellevue extends for a beyond distance of 2 miles territory limits and into the served Similarly, by school district No. 46. definition as a Class III school school district No. 46 also must have a in which it zoning powers. extraterritorial See 79-801(1). § April 11,
On filed, an application plat for final was seeking replat Normandy number lots in Hills
546 46, south of
subdivision, No. is located in which boundary. While District’s southernmost the Bellevue School City wholly the boundaries of outside lies the subdivision Bellevue School of the outside boundaries Bellevue and also within the District, lie subdivision triggered the transfer This application Bellevue. No. and into the district 46 property out of school provisions to the pursuant Bellevue School District District was the Bellevue School request A made 79-801 § negotiate, provided by No. 46 to as to school district however, negotiate chose not to 79-801(4). District Sarpy and, instead, the district court for an action in filed Nebraska, seeking injunction an a declaration that County, injunction This is the same is unconstitutional. might good negotiations faith had which have been obtained if provided by The district 79-801(4). not been conducted It that the act was not unconstitutional. court determined appeal this is now taken. from that order that issue, we proceeding to the constitutional Before address of whether district required to first address In proper party action. Webelieve it is not. No. 46 is this Winne, 431, 434-35, Education v. case of Board of quoting (1964), N.W.2d from Halstead v. Rozmiarek, we said: (1959), 167Neb. N.W.2d appellees “In to the that reference assertion change proposed of boundaries would affect the Baker deprive territory it it of a because would result decrease of and this would in a the amount and in the property value of the taxable district and would upon remaining cause increase of the tax burden an therein, property appropriately it be said that notwithstanding provides the statute that a school district body corporate, possesses powers is a the usual corporation public purposes, sue sued, firmly law it is established of this state *4 may involving not maintain an action a change a A in the boundaries of school district. integrity. subject district in this state no territorial It is through power to the the state reserve exercised authority according change territory its administrative to good to current educational educational needs may change repeal powers all principles. The state compensation property, take without area, expand or restrict its territorial unite the whole or state, agency of it with another subdivision destroy with the district or without the consent of the citizens.”
It if therefore follows that a school district change boundary, it also not attack the law which prescribes how and what manner those boundaries shall be changed. legal School district No. no 46 has interest in the question presented by and, therefore, the case standing no to petition. raise the constitutional issues set out in its regard situation in appellant, to additional Kentsmith, is, however, By petition another matter. his he first resident, alleges owner, that he is a property taxpayer alleges 46. district No. He then in his first cause of action that the great transfer of the land will “cause damage ... Kentsmith support from loss tax population and student ... .” alleges He further in his third cause action that “[a]s property property owner whose is taxed support School District Kentsmith’s financial burden would be replatted increased if the territory is transferred from School District No. 46 to School District of Bellevue.” He further alleges that he “received no notice from and has been afforded hearing by City no the School District of Bellevue regarding .” the transfer . . . allegations These are all made on his own behalf and not on behalf school district No. 46. To petition this of Bellevue and the Bellevue School District demurred. While allegations do not entitle any relief, they are, nevertheless, Kentsmith to give sufficient to standing him It sue. is his tax burden which he alleges will be transfer, affected and his property which will be “injured” by the transfer.
In Farrell v. School 853, 868, Dist. No. 126, 136 N.W.2d (1957), we said: will, equity
“A court of on the application of resident taxpayers, public restrain doing officers from illegal an *5 consummated, act, would be if such the effect of
act where See, also, by taxation.” public funds raised a waste 85; Maricle, 353, 83 N.W. 60 Neb. [citation McLain omitted]. 153, 154 548, 550, 141 Corson, N.W. In Lindeman we (1913), said: brought officers of injunction, to restrain
“In an action removing to another location from a school district district, right plaintiffs situated said schoolhouse established, appears they that if it is to the action maintain proposed taxpayers of are resident unauthorized, and an removal, would involve waste if funds; public and no other or expenditure of unwarranted be greater interest need shown.” 35, 116 also, Dodge, 82 N.W. 863 Hess v. Kentsmith’s claims are While we do not find that why, who meritorious, if one is a perceive we of no reáson injunction claim an on a that taxpayer and resident seek illegal, she not have performed is he or act to be injunction alleges when he she that he or standing an to seek injured by reason of taxpayer who about to be is a resident is she performed. is act about the fact that an unconstitutional does, therefore, sue, standing and we are Kentsmith claims. required to review his constitutional therefore 79-801(4) that in violation Specifically, claims is § Kentsmith both United States and the State of of the Constitutions of following (1) more reasons: It Nebraska for one or Const, I, 1, Ill, art. and art. 14th § § violates Neb. Constitution; 79-801(4) an (2) to theU.S. Section is amendment legislative power; delegation (3) unconstitutional patrons of No. 46 79-801(4)denies to due Section Const, I, the 14th process, in violation of Neb. art. We shall address each of amendment to U.S. Constitution. they claims in the in which have been raised. these order 79-801(4) special legislation, I. Section constitutes Const, Ill, equal protection art. violation Neb. and state Constitutions. guarantees both federal argues special legislation Kentsmith is districts, granted to Class III school because it has certain such District, rights which are denied certain as the Bellevue School districts, 46. as district No. III school such to other Class act An not to be the case. examination We believe that granted the been Class III districts have discloses that all that, therefore, special class created. rights there no same III district shall be provides that a Class Section 79-801 limits each corporate which is embraced within city village, together with such additional incorporated village be added territory and additions of more than population has a thereto where the *6 100,000. villages or have 1,000 All such cities and less than zoning jurisdiction, although the distances extraterritorial village. city the Neb. Rev. vary depending upon class of the or city class); primary miles for (Supp. 1985) (3 Stat. 15-902 § city (Reissue 1983) miles for of first (2 Neb. Rev. Stat. 16-901 § city class); (Reissue 1983)(1 Stat. mile for Rev. § case both school villages). of second In the instant class the School District as their district 46 and Bellevue city village having population a or a of more principal location 1,000 100,000, than school district than and less because unless village having city a a No. 46 within boundaries or 100,000, 1,000 than less it cannot population of more than result, As a both school district a Class III school district. right, have the No. 46 and the Bellevue School District plat filed approval a final is application whenever an zoning the within regarding property which is located within city village or and which is also located jurisdiction of the district, district the respective to annex to the school the school is plat replat or in the area for which the final land included in this action lies sought. The the land involved specific fact that and, Bellevue, zoning jurisdiction City of only within of the the District, therefore, make the act does not Bellevue School the token, plat involved if final legislation. By the same class city lying zoning jurisdiction land Class III be a permits district No. which right to cause No. 46 would have district. part of its transfer such land become must No. 46 fact in the instant case school not make yield Bellevue District to the School classification unlawful. The test particular is not whether a entity may right given but, rather, exercise a in a situation whether the class is so constructed that other entities rights they exercise and be a acquire class if necessary necessary characteristics and meet prerequisites.
Whenever plat replat is filed within the village having population of more 1,000 100,000 inhabitants, than and less than a Class III school district which village may serves that rights exercise granted Class III provisions school districts under the 79-801. There § is no distinction between “urban Class III” districts, school districts and “rural Class III” school suggested by Kentsmith. All Class III school districts have the same characteristics and are afforded rights the same under argument 79-801(4). The special legislation § that this is or that separate class within III Class school districts has been created simply supported by See, also, the facts. Hunzinger v. State, N.W. 194 simply There is no basis to Kentsmith’s claim that there is an improper class created provisions and, therefore, 79-801(4) § no basis to the Const, argument that I, violates either Neb. art. Ill, or art. or the 14th amendment to the U.S. Constitution.
II. Section 79-801(4) persons denies to within school district No. 46 equal protection the law. *7 Nor is there contending basis for that the statute denies to persons within school equal district No. 46 protection of previously law. We have held that in analyzing equal protection claims in the social and economic context for claims which do not suspect involve classes or rights, fundamental if there classification, exists such the court uses the “rational basis test.” In Michalski, State v. 380, 385, 221 Neb. 510, 377 N.W.2d 515 (1985), we said: the statute involves legislation
[I]f
economic or social
not
implicating
right
class,
fundamental
suspect
courts
will
only
ask
whether a rational relationship exists between
legitimate
state
statutory
interest and the
means selected
legislature
accomplish
to
e.g.,
that end.
Vance
Bradley,
v.
93,
939,
440 U.S.
99 S. Ct.
Kentsmith’s differently and are treated III districts” “rural Class III school in “urban Class persons unfairly compared noted, make does not already we have districts.” As rather, classification, but, Class all rural urban versus such an equally. treated III districts are had created Furthermore, Legislature if even districts, we have Class III school between classifications interest rather obvious the state has a previously held that villages orderly of cities expansion providing for the within such located principally districts corresponding school No. 82 v. Dist. High School villages. See Northwest cities court is This Hessel, N.W.2d 656 for rational basis say there is no unable to that simply land, jurisdiction over acquires suggesting that as located within principally the school needs the educational right provide not have first should will fact, the land In in most instances plat. in that people but, after a zoning jurisdiction city’s only be within the was district court time, itself. The corporate limits within persons 79-801(4) denied refusing to find correct the law. protection of equal district No. 46 the delegation unconstitutional 79-801(4) is an III. Section legislativepower.
552 rejected
We such previously question addressed this 800, 127 argument. Rentfrow, supra at N.W.2d In McDonald v. 483, at we said: fixing boundaries of districts legislative function, may and it
exclusively properly be agency, delegated providing subordinate Legislature prescribes the manner and standards under be designated which board power Axtell, 813, v. exercised. Nickel School Board of 157Neb. 566; Schmitt, 162, 61 N.W.2d Schutte 75 v. 656; Roy R-31, N.W.2d v. Bladen School Dist. No. 165 W.2d precisely Neb. 84 N. 119. Stated more this court Schmitt, supra: Legislature said in Schutte v. “The delegate authority provided purpose this it states the for doing up guide so and sets reasonable standards to See, also, agency is to which administer it.” School Dist. Decker, 354; No. 39 v. Neb. N.W.2d Nickel Axtell, 79-420, supra; School Board R.S. Supp., 1961.
An clearly provides examination those triggers clearly standards. The mechanism which the transfer is prescribed by Furthermore, statute. criteria which are to negotiating used in transfer out 79-801(2). are set Finally, provides parties the act also that if the unable negotiate standards, in accordance with the then the school located within the having acquire over the land in shall the land and make it a certainly of its district. There are limits We, the school again, district’s discretion that scheme. believe that the district court was correct in its determination.
IV. process rights Section 79-801 violates due because it does provide hearing. notice and a have, likewise, We addressed this issue and held to the contrary. Axtell, In Nickel School Board 157 825-26, 574 (1953), N.W.2d we said: public convenience, policy, welfare,
Questions as related municipal corporations, to the creation of counties, cities, villages, districts, or other subdivisions, any change are, thereof, in the boundaries *9 instance, and, purely legislative cognizance in first any delegated public body having legislative when regard power, any come action thereto not process the due of either the or federal clause state See, Yensen, v. Constitutions. Searle 257; District, supra; N.W. A.L.R. Ruwe v. School County, Nebraska Mid-State Dist. Hall Reclamation supra; County Seward Rural Fire Protection Dist. County Seward, supra. when, change,
But as a condition to their creation or authority public body delegated to which is must find Legislature certain to exist upon facts which the has said depends subdivision, authority to declare such or therein, change questions presented to exist then the are of quasi-judicial In hearing character. such cases a must be had to determine if such facts exist and proper notice provided given thereof must be for parties to all Yensen, interested therein. Searle v. supra; Ruwe v. District, supra. School present
In the case the school required districts to find they authority certain facts before triggering to act. The filing request mechanism is the the acceptance for of a plat or replat. application filed, Once that approval for the two required negotiate. districts are There is quasi-judicial no delegated regard, function to the school districts in this findings concerning there are no to be made request for approval plat replat. of a final The fact of the existence aof request approval plat replat a final becomes evident and apparent Thereafter, once the application is filed. process completely filing becomes mechanical. The application triggers act, findings no the school required districts are Consequently, requirement made. process rights for the attachment of due does not exist. foregoing we For reasons conclude that the district court was correct its conclusion that does not violate U.S. either the Constitution the Constitution of the State of request injunction Nebraska. The for an should have been demurrers, therefore, on requested, denied the basis correctly judgment were sustained. The is affirmed.
Affirmed. Shanahan, J., concurring. No. regarding reaching a correct result While premises basic some majority overlooked majority “School The states: of constitutional law. principles legal question presented in the no interest 46 has therefore, and, standing no to raise the constitutional case petition.” issues set out in its petition commences: plaintiffs’ proceedings
In these . . and plaintiffs, District No. 46 . “COME NOW the School . . . .” . . . their causes of action David K. Kentsmith and for petition then sets out six causes (Emphasis supplied.) action, that Neb. Rev. Stat. one of which claims Supp. equal protection violates “the clauses (Cum. 1984) and the Nebraska Constitution” United States Constitution action) requests a declaration that 79-801 (sixth cause of *10 unconstitutional, while cause of action asserts is another 79-801, reducing revenue and possibly the school district’s tax § “special legislation” in of Neb. pupils, number of is violation Const, therefore, is, Ill, (first action), art. 18 cause of § unconstitutional.
Among the U.S. safeguards of the 14th amendment to clause, namely: “equal protection” Constitution is “[N]or any deny any person State ... shall Const, 1, I, equal protection provides: the laws.” Neb. art. of § persons independent, nature and have “All free and Further, according rights ....” certain inherent and inalienable Const, Ill, Legislature pass to Neb. art. 18: “The shall special [granting . . . corporation, local or laws association, any special privileges, individual or exclusive immunity, expressed ...” As this franchise whatever court Co., City Telephone Neb. in Plattsmouth v. 80 Nebraska of 588, 460, 464, special (1908): privilege “A in 114 N.W. 590 franchise, right, immunity power, constitutional law is to, in, granted persons privilege person or vested class of derogation right.” of the exclusion of others in common Recently, out: pointed we prohibits
The the U.S. 14th amendment to Constitution from, among things, denying any person a state other
555 equal protection depriving any of the laws and from person property process without due of law. I, 1,
Article of the Nebraska Constitution does not protection concern itself with equal of the laws. It is article III, 18, disparate which deals with treatment concerning special legislation. itself with Jensen, 438, 443, 511, 223 Porter Neb. 390 N.W.2d 515 (1986). recognized
A judicially species school district has been as a municipal corporation. Axtell, See Nickel v. School Board of 813, 61 (1953). N.W.2d 566 There is a definite difference corporation between business municipal and a corporation, a recognized by Supreme distinction Court of Smith, 471, 477, Missouri St. Louis v. 325 Mo. 30 S.W.2d (1930): 730 corporation business organized purpose for the [A is] carrying on profit; a business for while municipal [a corporation] organized is with political legislative powers for government the local civil police regulation people particular district included boundaries; within its and that it ais subordinate branch government of the domestic of a state. This court employed association, definition namely, “ act ‘The of a number persons uniting together for some ”
purpose. persons joining.’ Sautter, so In re Estate 42, 52, N.W.2d municipal
A corporation, state, as a subdivision aof anot “person” guaranteed equal protection of the laws. Bd. Comm., Comm’rs v. Kokomo Plan 263 Ind. (1975); Shelby Pensacola,
N.E.2d 92 v. City 112 Fla. *11 151 (1933); County, So. 53 Hester, Warren Mississippi v. 219 763, 54 La. 2d 12(1951). expressed by So. As Justice Cardozo Mayor, 36, 40, 431, Williams v. 289 U.S. S. 53 Ct. 77 L. Ed. 1015 “A (1932): municipal corporation, by created a state ordering better of government, privileges has no immunities under the federal it constitution which invoke opposition to the will itsof creator.” jurisdictions
Other specifically held that a school district, being a person, neither natural nor being artificial but a
556 any meaning creation, within the “person”
legislative
a
Dist. v.
Ind. Sch.
limitation.
rights or constitutional
bill of
v. Los
924,
(1941); Grasko
Board,
N.W. 440
230 Iowa
290,
Education,
App. 3d
31 Cal.
Angeles
Board of
412, 415,
Armstrong, 246 Iowa
v.
(1973); Dean
Rptr.
Cal.
legislative
‘is
51,
a
(“[A] school
(1955)
68 N.W.2d
state, a
profit. It is an arm of the
organized for
It is not
creation.
within the
“person”
not a
organization. It is
political
It has
rights
limitation.
or constitutional
meaning of
bill
functions,
except
as are
capacity,
rights, no
no
no
Therefore,
.’
by
legislature.
”).
. .
upon
conferred
it
to the U.S.
the 14th amendment
equal protection clause of
of the Nebraska
“special
provision
laws”
Constitution
is not
applicable to a school
which
are not
Constitution
Constitution,
by
state or federal.
“person” protected
a
providing
protection and
guarantees
equal
Those constitutional
entity having
legislation contemplate an
special
prohibiting
largess.
legislature’s
independent of a
existence
ostensibly
on behalf of school
a claim
Kentsmith
asserts
equal
alleging
considerations of
constitutional
district No.
thereby
legislation, and
acts
a
special
protection
district, seeking redress for
surrogate
ego for the school
or alter
Generally, one cannot assert
No. 46.
Richards,
Blackledge
rights of
See
constitutional
another.
188, 231
Ordinarily, challenge
(1975).
N.W.2d 319
194Neb.
constitutionality
ground
on
that the assailed
of a statute
rights
by discriminating
equal
privileges
statute denies
not be made
one not
persons
between
or classes
against.
belonging
alleged to be discriminated
See
to the class
See, also,
Gass,
It is constitutionality only “may a statute when attack being to his applied far as it is is about to and so *12 he must show disadvantage; and to raise injures of the statute feature alleged unconstitutional him of a constitutional deprive as to operates him and so course, that he establish and, prerequisite it right, infringed.” alleged which is right himself the claimed stature with constitutional person not a If a school district is Kentsmith, Constitutions, as a rights certain under to assert by litigation enhance cannot the school protagonist for rights the district produce stature and the school district’s realities existing in the constitutional greater than those before us. situation as the present and such as the
Consequently, in situations corporation municipal as a district’s existence result of a school No. 46 nor state, neither school and subdivision capacity to district has the of that school on behalf Kentsmith equal protection and concerning questions constitutional raise amorphous district’s approving In a school legislation. special legislation, special equal protection in relation to existence already fog into clouded forensic today’s introduces decision raise capacity to concerning a school district’s cases questions. constitutional Raymond D.
Valerie A. Peterson, Peterson, appellee, Mary Ann Woollen, appellant, Woollen Nordon intervenors-appellees. wife, husband N.W.2d 792 January 23, 1987. No. 85-777. Filed