228 N.W.2d 278 | Neb. | 1975
This case involves an interpretation of the Nebraska Budget Act, being sections 23-921 to 23-933, R. R. S. 1943. The plaintiff, Neal C. Willms, filed this action against the defendant, Nebraska City Airport Authority, under the provisions of section 23-930, R. R. S. 1943, praying that the fiscal 1973 budget of the defendant be set aside as having been adopted in violation of the Nebraska Budget Act. The case was tried to the court, which on May 20, 1974, entered judgment in favor of the plaintiff. The court declared the defendant’s budget to be “void and without effect”; declared the levy made under the budget to be “void”; and ordered “all monies now received, or that may hereafter be received by either the City Treasurer of Nebraska City, Nebraska, or the County Treasurer of Otoe County, Nebraska, by reason of this levy made on behalf of the Defendant shall be by them distributed as provided by law and the order of this court * * The costs of the action were taxed to the defendant. At a subsequent hearing, the court awarded the plaintiff an attorney’s fee for his attorney in the sum of $800, “the same to be charged as costs in this action to be paid by defendant.” The defendant thereafter perfected its appeal to this court. As its principal assignments of error in this appeal, defendant alleges that the trial court erred in determining that
Before discussing the facts of the case, it will be helpful to note some of the pertinent provisions of applicable statutes. We first note the purpose of the Legislature in enacting the Nebraska Budget Act in .1969. This is clearly set out in section 23-921, R. S. Supp., 1972, as follows: “The purpose of this act is to require governing bodies of this state to which this act applies to follow prescribed budget practices arid procedures and make available to the public pértinent information pertaining to the financial requirements and expectations of such governing bodies so that intelligent and informed support, opposition, criticism, suggestions, or observations can be made by those affected; * * (Emphasis supplied.) Section 23-922, R. S. Supp., 1972,, provides: “As used in this act, unless the context otherwise requires: (1) Governing body shall mean, in the case of a city, the council; * * *; in the case of an airport authority, the airport authority board; * * Section 23-923, R. S. Supp., 1972, provides: “Each governing body shall prepare in writing arid file with its secretary or clerk, in the year of its organization and each year thereafter, not later than the first day of August of each year on forms prescribed and furnished by the auditor following consultation with representatives of such governing bodies or as otherwise authorized by state law, a proposed budget statement containing the following information, except as provided by state law: * * The provisions for a hearing on the proposed budget, and the specific procedures to be followed, are set out in section
The statutory provisions authorizing a taxpayer to contest the validity of the budget statement adopted by the governing body are contained in section 23-930, R. R. S. 1943: “A taxpayer upon whom a tax will be imposed as a result of the action of a governing body in adopting a budget statement, as herein required, may contest the validity of the budget statement so adopted by the governing body by filing an action in the district court of the county in which the governing body is situated. Such action shall be based either upon a violation of or a failure to comply with the provisions and requirements of this act by the governing body. In response to such action the governing body shall be required to show cause why the budget statement should not be ordered set aside, modified or changed. The action herein authorized shall be tried to the court without a jury and the same shall be given priority by the district court over other pending civil litigation, and by the Supreme Court on appeal, to the extent possible and feasible to expedite a decision therein. Such action shall be filed within thirty days after the adopted budget statement is required to be filed by the governing body with the levying board. If the court finds that the governing body has violated or failed to comply with
“The remedy provided hereby shall not be exclusive but shall be in addition to any other remedy provided by law.”
Two other statutes, not part of the Nebraska Budget Act; but contained in the City Airport Authorities Act, should be noted. Section 3-503(3), R. S. Supp., 1973, provides, among other things: “All obligations of such city for the payment of money to an authority incurred in carrying out the provisions of this act shall be included in and provided for by each annual budget of such city thereafter until fully discharged.” Also, section 3-504, R. S. Supp., 1973, which sets out the powers of an airport authority, provides: “Any authority established under the provisions of this act shall have power: * * * (12) To certify annually to the governing body of the. city the amount of tax to be levied for airport purposes, which the authority requires under its adopted budget statement to be received from taxation, not to exceed one mill on the dollar upon the assessed valuation of all the taxable property in such city, except intangible property, and the governing body shall levy and collect the taxes so certified at the same time and in the same manner as ■ other city taxes are levied and collected, and the proceeds of such taxes when due and as collected shall be set aside and deposited in the special account or accounts in which other revenue of the authority is deposited; Provided, that an authority in a city of the first or second class shall have power to certify annually to the governing body of such a city an additional amount of tax to be levied for airport purposes, not to exceed one mill, to be levied, collected, set aside, and deposited, as above specified, and if negotiable bonds of the authority are thereafter issued, this power shall continue until such, bonds are paid in full.
With the above statutes as a background, we now examine what transpired in this case. In the course of preparing the fiscal 1973-1974 budget for Nebraska City, the clerk-treasurer of that city, on May 23, 1973, notified the Nebraska City airport authority by letter that the council would appreciate receiving the budget requests of the authority as soon as possible so that they might be included in the general all-purpose levy of the city. Under the Nebraska statutes, above-quoted, the airport authority has the power to levy a one-mill tax on the property within Nebraska City without the vote of the people or the city council but the actual levy is made by the city council after receipt of the certification of the budget from the authority. Following receipt of the letter from the city clerk, the airport authority, on June 5, 1973,.posted a notice in three public places that a meeting of the Nebraska City airport authority would be held at 9 p.m., Thursday, June 7, at the fire & rescue building, which meeting would be open to the public. At no time prior to that meeting, held on June 7, 1973, did the authority publish notice in a newspaper of general circulation that there would be a budget hearing held on that date, or showing the amounts of the proposed budget, as required by law. The Nebraska City airport authority adopted its proposed budget on that date, and thereafter certified its budget requirements to the city. That budget did not
On September 14, 1973, the plaintiff filed his petition under section 23-930, R. R. S. 1943, of the Nebraska Budget Act, to set aside the airport authority’s budget. It should be noted in passing that under that section the burden of proof is placed upon the governing body to show cause why the budget statement should not be ordered set aside, modified, or .changed. Upon trial, as previously stated, the trial judge sustained plaintiff’s contentions and set aside the budget statement. Defendant has appealed from that judgment.
The record in this case clearly shows that the airport
The question, therefore, is whether the requirements and procedures contained in the Nebraska Budget Act are mandatory and jurisdictional, or whether substantial compliance will suffice. The trial court held those re
The main purpose of the Nebraska Budget Act in requiring a public budget hearing is to guarantee the right to attempt to persuade a taxing body not to levy a tax for an unwanted project. The appearance of citizens before a meeting of the Nebraska City council would not accomplish that purpose, and the airport authority board should not have bypassed the clear requirements of the statute in that regard. The spirit and purpose of the Nebraska Budget Act was not carried out.
The District Court awarded plaintiff the sum of $800 as a fee for his attorney, and in its judgment entry taxed the amount of such award as costs against the defendant. Defendant objects to the award, claiming that there is no statutory authority or uniform practice for such allowance. Strawn v. County of Sarpy, 156 Neb. 797, 58 N. W. 2d 168 (1953); Warren v. Warren, 181 Neb. 436, 149 N. W. 2d 44 (1967). This is undoubtedly true. However, plaintiff seeks to justify the award of attorney’s fees on the theory that the services of his attorney
However, even if this were a class action which resulted in the creation of a fund for the benefit of' a class of persons, under the facts of this particular case it would not be legally possible to award plaintiff an attorney’s fee. The fund out of which the award of attorney’s fees would have to be paid is in the hands of the county treasurer of Otoe County, Nebraska, who was not made a party to this action. Nor has the fund, itself, consisting of taxes collected under the levy in question, ever been within the jurisdiction of the court. Obviously, therefore, the court would have no jurisdiction to charge that fund with the payment of attorney’s fees, or to order the county treasurer of Otoe County to do so. This distinguishes the case from Summerville and Gamboni, even if otherwise applicable, where each .county treasurer himself was a party defendant in the respective lawsuits. For all these reasons, we conclude that the District Court was without authority to award plaintiff an attorney’s fee in this case, or to charge an award of attorney’s fees as costs against the defendant. Furthermore, even if an award of attorney’s fees were permitted because of the creation of a fund, in this case the court would be without jurisdiction to make such award a charge against the fund of collected taxes in the hands of the county treasurer who was not a party to the action.
We modify the judgment of the District Court and deny the award of attorney’s fees to plaintiff. Our decision on this issue is not to be construed as in any manner abrogating or affecting any private contract, arrangement, or understanding between the plaintiff and his attorney with regard to the payment of attorney’s fees.
Affirmed as modified.