Sanitary & Improvement District 57 v. City of Elkhorn

536 N.W.2d 56, 248 Neb. 486, 1995 Neb. LEXIS 180
CourtNebraska Supreme Court
DecidedAugust 18, 1995
DocketNos. S-94-869, S-94-983, S-94-995
StatusPublished
Cited by94 cases

This text of 536 N.W.2d 56 (Sanitary & Improvement District 57 v. City of Elkhorn) 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
Sanitary & Improvement District 57 v. City of Elkhorn, 536 N.W.2d 56, 248 Neb. 486, 1995 Neb. LEXIS 180 (Neb. 1995).

Opinion

White, C.J.

Sanitary and Improvement District No. 57 (Chapel Hill) et al. and various others filed three separate actions, which are consolidated herein, to enjoin the total annexation of the Chapel Hill community and the partial annexation of Sanitary and Improvement District No. 157 (Skyline Ranches) by the City of Elkhorn (City). The cases — SID No. 57 v. City of Elkhom (S-94-995 (SID 1)), SID No. 57 v. City of Elkhom (S-94-869 (SID 2)), and In re SID No. 157 (S-94-983 (SID 3))-challenge the validity of the City’s annexation by arguing generally (1) that any attempted annexation was invalid because the City’s council was elected improperly and (2) that the City was motivated to annex Chapel Hill and Skyline Ranches solely to increase revenue. Specifically, in SID 1, Chapel Hill and others challenge the district court’s determination to grant summary judgment in favor of the City; in SID 2, Chapel Hill and others challenge the district court’s determination to grant a demurrer in favor of the City; and in SID 3, Chapel Hill and others [488]*488challenge the validity of the partial annexation of Skyline Ranches. In each case, we affirm.

As a preliminary matter, we consider Chapel Hill’s contentions that the City’s council was illegitimate under Nebraska law and that the council acted to annex Chapel Hill and Skyline Ranches solely to increase revenue.

In each of the three cases, Chapel Hill contends that any annexation ordinance passed by the City’s council is void because the council was not elected properly. Chapel Hill maintains that the council was not elected by wards as required by Neb. Rev. Stat. §§ 17-102 and 17-104 (Reissue 1991), but instead by the constituents of the City on an at-large basis.

Assuming, without deciding, that the City’s council was elected improperly, the council members nevertheless remain de facto public officers. A de facto public officer is a person who exercises the duties of a public office under the color of a known public election which was void because of ineligibility or some defect or irregularity in the election. Prucka v. Eastern Sarpy Drainage Dist., 157 Neb. 284, 59 N.W.2d 761 (1953). Furthermore, the acts of a de facto public officer are valid and binding as if performed by a duly elected public officer whose title is beyond dispute. ConAgra, Inc. v. Cargill, Inc., 223 Neb. 92, 388 N.W.2d 458 (1986); State v. Birdwell, 188 Neb. 116, 195 N.W.2d 502 (1972). See, State ex rel. Weiner v. Hans, 174 Neb. 612, 119 N.W.2d 72 (1963); State v. Kidder, 169 Neb. 181, 98 N.W.2d 800 (1959). Additionally, in Nebraska, the general rule is that the title to an office can be litigated only in a proceeding brought directly for that purpose and cannot be determined by a collateral attack in another proceeding. Atkins v. Department of Motor Vehicles, 192 Neb. 791, 224 N.W.2d 535 (1974); State ex rel. Weiner, supra. See Birdwell, supra.

Chapel Hill asks this court to declare any annexation ordinance passed by the City’s council to be void on the grounds that such an ordinance is the product of improperly elected officials. However, Chapel Hill raised its contention in the context of a challenge to the legality of land annexation. Thus, Chapel Hill’s assertion that the council was elected improperly cannot be determined in this proceeding because such an assertion is a collateral attack. Therefore, Chapel Hill’s [489]*489contention is without merit because this court, in this proceeding, will not permit Chapel Hill to mount a collateral attack on the propriety of the election that brought the City’s council members to their jobs in order to invalidate annexation ordinances the council passed.

Next, Chapel Hill contends that the City undertook the annexation of Chapel Hill and a part of Skyline Ranches solely to increase revenue. It is trae that a municipality cannot annex property for revenue purposes only. S.I.D. No. 95 v. City of Omaha, 221 Neb. 272, 376 N.W.2d 767 (1985). See, United States v. City of Bellevue, Nebraska, 334 F. Supp. 881 (D. Neb. 1971), aff’d 474 F.2d 473 (8th Cir. 1973), cert. denied 414 U.S. 827; Witham v. City of Lincoln, 125 Neb. 366, 250 N.W. 247 (1933). However, it is likewise true that the evidence in this case does not support that claim. By annexing Chapel Hill and a part of Skyline Ranches, the City assumed the obligation for ah of their liabilities. No doubt the City considered seriously the question of revenue because under the annexation plan, the City assumed the responsibility of providing all necessary improvements and services to Chapel Hill and Skyline Ranches. Prudent annexation planning compels the City to consider any revenue to be engendered by an annexation, in light of the liabilities to be incurred. To suggest that the City acted unlawfully by considering the revenues that would result from an annexation is to fail to recognize that the City would incur substantial obligations to Chapel Hill and Skyline Ranches as a result of an annexation. Therefore, Chapel Hill’s contention that the City annexed all of Chapel Hill and a part of Skyline Ranches solely for revenue purposes is without merit.

In SID 1, the district court’s decision to sustain the City’s motion for summary judgment and to overrule the appellants’ motion for summary judgment is appealed. Appellants (Chapel Hill, Billy D. Duncan, and Timothy V. Grove) assigned five errors, which may be consolidated into two. Appellants contend that the district court erred (1) in determining that land annexed by the City met the statutory contiguity requirement and (2) in failing to grant appellants’ motion for summary judgment. We affirm.

The record contains the following facts: On August 10, 1993, [490]*490the City’s council approved ordinance No. 280. The ordinance called for the annexation of the Chapel Hill community. Prior to the passage of the ordinance, Chapel Hill shared a common border with the City via the Elkhorn school district’s Skyline Elementary School. The school is connected to the City by a strip of land surrounding and including Highway 31. The common border had existed since March 1984.

During early 1984, the City’s council had approved ordinance No. 208. That ordinance extended the City’s corporate limits south along Highway 31 to Pacific Street and west along Roundup Circle and Corral Road up to and including Skyline Elementary School. This 1984 annexation included land within Skyline Ranches. As a result, the City and Skyline Ranches had entered into an agreement concerning a division of assets and liabilities and a change of boundaries. Following the agreement, the City and Skyline Ranches filed in Douglas County District Court an “Application Re Partial Annexation” as required by Neb. Rev. Stat. § 31-766 (Reissue 1993). On March 24, 1984, the district court entered a decree on partial annexation, which stated that the territory sought to be annexed by ordinance No. 208 had become a part of the City.

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Bluebook (online)
536 N.W.2d 56, 248 Neb. 486, 1995 Neb. LEXIS 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sanitary-improvement-district-57-v-city-of-elkhorn-neb-1995.