65 Neb. 52 | Neb. | 1902
This is a suit brought in the district court for Sarpy county, by the village of Bellevue, plaintiff in error, against the Bellevue Improvement Company and others, defendants in error, to obtain an injunction restraining defendants from obstructing streets and alleys in the village, from cutting down and removing timber, and committing other acts alleged to be unlawful. A general démurrer was interposed to the petition, which was by the trial court sustained, and the suit dismissed. From this judgment of dismissal the village of Bellevue prosecutes error to this court.
The only question requiring determination is the sufficiency of the petition to entitle plaintiff to equitable relief. The plaintiff’s petition alleged, in substance, that the city of Bellevue was incorporated under an act approved March 15, 1855, and was subsequently incorporated as a village under an act approved March 1,1879; that after incorporation as a city, the territory embraced within its limits was surveyed and platted; that by dedication various tracts of land were conveyed by the owners to the citj
Defendants in error contend that the petition is insufficient for many reasons, not all of which need be noticed. It is contended by plaintiff in error that, the territory embraced within the limits of the village of Bellevue having been incorporated by act of the legislature as a city in territorial days, and the act of incorporation containing no provision authorizing vacation of streets, such right could not have been exercised by the village board at the date of the attempted vacation, and that under the terms of the act providing for the incorporation of the city of Bellevue, the fee-simple title to the streets and alleys and other public grounds vested in the city; that the organization of the city as a village under the provisions of. the act of the legislature approved March 1, 1879, could not and did not change the title to the streets and alleys of the village ; that the title, after incorporation as a village as well as before, remained a fee-simple title in the village, and the action of the village board in vacating the streets and alleys w7as illegal and void. This contention can not be sustained. When the city of Bellevue adopted village organization under the provisions of the act of March 1, 1879; it was, from that time forward, governed' in ail respects by the statute, to the same extent as though.it had never been a city. In section 40 of the act referred to (Compiled Statutes, chap. 14, art. 1) the legislature said: “Any tow7n or village * * * now7 incorporated, * * * shall bé a village and shall have the rights, pow7ers, and immunities hereinafter granted, and none other, and shall
The next question we are required to consider is whether the action of the village board in vacating the streets and alleys in question can be attacked in the manner sought by the petitioner in this action. The action of the board in vacating the streets under ah ordinance passed in pursuance to statute, is judicial in its nature. By subdivision 28, section 69, the board has poAver “to * * * annul, vacate or discontinue” any street, avenue, alley or lane, “whenever deemed expedient for the public good,” the compensation to OAvners of property damaged thereby “to be determined by the assessment of five disinterested householders,” etc. Thus, whether or not a street shall be vacated is by statute left to the discretion of the village board, and it is they who say whether the vacation is expedient for the public good. In the case of Howard v. Clay County, 54 Nebr., 443, this court, construing a similar section (Compiled Statutes, ch. 78, sec. 46) providing for the opehing of section lines whenever the public good requires it, said: “The propriety or necessity of opening and working a section-line road is commitiod to the discretion of the county board.” In the case of Beall v. State, 9 Ga., 367, it is said: “When a special jurisdiction is conferred by the legislature on commissioners for the purpose of ascertaining certain facts, which they are required to certify, and they do so certify, their certificate is the evidence of their judgment, and is as conclusive as any other judgment upon the particular question sub
It is alleged that the vacation proceedings were had at the instance and request and upon the promises of certain of the defendants. It is clear that, to sustain the contention that this should annul the ordinances of the village board, would involve an exercise by the court of a power to inquire into the motives of the members of the village board in the enactment of an ordinance, and pronounce it invalid if such motives are found bad. In Elliott, Roads and Streets, p. 664 [2d ed.,p.963], it is said: “Whether it is expedient to discontinue a highway is a question for legislative decision, and when the authority to discontinue is delegated to local officers, and no restrictions are placed upon its exercise, the officers are invested with a very broad discretion, and unless this 'discretion has been abused the courts can not interfere. This is in accordance with the general rule that, where officers are invested with discretionary power, courts will not substitute their judgment for that of the officers invested by law with the right to decide upon the necessity or expediency of doing a designated act.” In the case of Knapp v. St. Louis, 56 S. W. Rep. [Mo.], 1102, it is said: “The vacation of a portion of a street by a municipality a.t the instigation of a private corporation, that the corporation may use such vacated portion in the extension of their premises, is not such fraud as will authorize the courts to invalidate the ordinance.” Bowen v. Hester, 143 Ind., 511. In the case of State v. City of Elizabeth, 54 N. J. Law, 462, it is said: “The fact that one of the reasons for vacating that portion of the street was to accommodate a person over whose lands the vacated portion ran does not invalidate the ordinances.” It follows that the ordinances assailed are not invalid because of the fact that certain owners of abutting property actively sought to bring about the vacation.
It is alleged that certain of the property owners other
After a careful examination of the petition in the case at bar, we are convinced that it fails to disclose facts sufficient to show that the ordinances of the village board ire void, and, those ordinances being valid, the petitioner was not entitled to the relief prayed for, and the demurrer was by the trial court properly sustained. It is therefore recommended that the judgment of the district court in sustaining the demurrer and in dismissing the petition be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.