Beisner v. Cochran

293 N.W. 289, 138 Neb. 445, 1940 Neb. LEXIS 148
CourtNebraska Supreme Court
DecidedJuly 12, 1940
DocketNo. 30921
StatusPublished
Cited by23 cases

This text of 293 N.W. 289 (Beisner v. Cochran) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beisner v. Cochran, 293 N.W. 289, 138 Neb. 445, 1940 Neb. LEXIS 148 (Neb. 1940).

Opinion

Carter, J.

This is a suit brought by plaintiffs, on behalf of themselves and others similarly situated, to obtain a declaration of the rights, status and legal relations of the parties under sections 60-435 to 60-444, Comp. St. Supp.11937, as affected by chapter 78, Laws 1939. The defendants are the administrative officers of the state who are charged by law with the enforcement of the statutes in questioh. The trial court [447]*447sustained a general demurrer to the petition and dismissed the action. Plaintiffs have appealed from the adverse judgment entered-against them.

Prior to 1937 the statutes of Nebraska provided that motor vehicles should be equipped with adequate brakes and lights. In 1937 a statute was passed requiring resident owners of motor vehicles to procure annual certificates of inspection showing that the brakes, lights and other equipment comply with the statutes of the state and the regulations of the administrative department having charge of the enforcement of the law. The statute provided further that any public garage, by meeting certain requirements, could become an authorized inspection station and make a charge of 25 cents for each complete inspection, of which 20 cents might be retained by it. Comp. St. Supp. 1937, secs. 60-435 to 60-444. The plaintiffs are operators of public garages who made investments in special machinery and equipment and secured sufficient space and personnel to qualify as official inspection stations and thereby became qualified to inspect motor vehicles and to make the statutory charge therefor.

In 1939 the legislature passed a new statute with more rigorous requirements with respect to brake and light equipment, and repealed the provisions of the 1937 act requiring compulsory inspections and authorizing official inspection stations. Laws 1939, ch. 78. It is the contention of plaintiffs, among others, that the repeal statute destroyed the value of their special machinery and equipment in a manner violative of the due process clauses of the state and federal Constitutions and also constituted a taking or damaging of private property for public use without just compensation contrary to constitutional prohibitions.

We think the rule is, that a citizen has no vested right in statutory licenses, permits and privileges. This being true, a license to carry on a particular trade may be recalled by legislative action at any time. No one has a vested right to be protected against consequential injuries arising from a proper exercise of public powers. That the state [448]*448under its police power may regulate the use of motor vehicles on the public highways cannot be questioned. Consequently, any incidental damage resulting from a legislative invocation of its police power does not give rise to a right to enjoin the act or to claim compensation from the public. And, likewise, the amendment or repeal of an existing police regulation must necessarily follow the same principle. The applicable rule is well stated in Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 205, as follows: “A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the state that its use by any one, for certain forbidden purposes, is prejudicial to the public interests. Nor can legislation of that character come within the Fourteenth Amendment, in any case, unless it is apparent that its real object is not to protect the community, or to promote the general well-being, but, under the guise of police regulation, to deprive the owner of his liberty and property, without due process of law. The power which the states have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not — and, consistently with the existence and safety of organized society, cannot be— burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is [449]*449abated; in the other, unoffending property is taken away from an innocent owner.”

The licenses issued to plaintiffs under the 1937 act, permitting them to operate official inspection stations, created no contractual relationship between them and the state. Plaintiffs are presumed to have known that the continued existence of the license was dependent upon the willingness of the legislature to keep the statute creating- it in force. The statute authorizing the licensing- of official inspection stations and requiring annual inspections of all motor vehicles using the public highways of the state is a proper exercise of the police power of the state and any incidental restraints imposed thereby upon the use of property is not in contravention of the due process clauses. Likewise, the repeal of such police regulation constitutes a proper exercise of legislative power and any incidental damage to property resulting therefrom is not inhibited by the due process clauses, nor does it constitute a taking or damaging of property for public use within the purview of constitutional provisions on that subject. Marsh & Marsh v. Carmichael, 136 Neb. 797, 287 N. W. 616.

We concur with plaintiffs’ contention that the repeal or amendment of a statute cannot have the effect of destroying vested rights acquired under a former law. But the license or permit granted in the instant case, authorizing the plaintiffs to operate an official inspection station, does not convey a vested right. Martin v. State, 23 Neb. 371, 36 N. W. 554; Effenberger v. Marconnit, 135 Neb. 558, 283 N. W. 223.

We necessarily conclude that the legislature could lawfully amend or repeal sections 6G-435 to 60-444, Comp. St. Supp. 1937, without violating- the provisions of the state and federal Constitutions hereinbefore mentioned. Neither are the plaintiffs entitled to redress by injunction or compensation for the damage, if any, caused by the repeal of the designated sections of the former law. 2.Cooley, Constitutional Limitations (8th ed.) 792-796; 11 Am. Jur. 1200, sec. 372. A license or permit granted by the state is [450]*450a mere privilege which the legislature can take away at any time. The grantees must rely solely upon the faith of the sovereign grantor for its continuance.

Plaintiffs argue that section 6, ch. 78, Laws 1939, violates section 21, art. I of the Constitution of Nebraska, in that it provides for the taking or damaging of property for public use without just compensation.

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Bluebook (online)
293 N.W. 289, 138 Neb. 445, 1940 Neb. LEXIS 148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beisner-v-cochran-neb-1940.