Shadbolt v. County of Cherry

174 N.W.2d 733, 185 Neb. 208, 1970 Neb. LEXIS 524

• Court: Nebraska Supreme Court
• Decided: February 20, 1970
• Docket: 37363
• Status: Published

Opinions

Smith, J.

Land owned by George W. Shadbolt formed part of Gordon Memorial Hospital District in Cherry County, part of the district lying in an adjoining county. Voters of Cherry County on initiative petition authorized a county hospital. Shadbolt subsequently sued to invalidate the election. Motion of the county and its commissioners, defendants, for summary judgment was sustained, and this appeal has been taken.

Shadbolt asserts: (1) Failure of the county clerk to notify the public of a special meeting of the board to call the election nullified the proceeding; (2) the ballot did not respond to the petition; (3) the proposition was dual; and (4) the election effected violations of Article I, section 25, and Article VIII, section 1, Constitution of Nebraska, which prohibit discrimination and require uniformity in taxation.

The county clerk on January 20, 1969, undertook to notify the public of a special session of the board on January 22 to consider the initiative petition. He simply posted a typewritten notice on the bulletin board outside the meeting room but away from daily courthouse traffic.

The county board at the special session responded to the initiative petition which proposed an election on a bond issue to acquire or construct a county hospital... The proposition at the election, called for March 4, I960, in the board resolution was to be whether the board should issue general obligation bonds to purchase, acquire, or construct a county hospital. The ballot stated the proposition as follows: “Shall the Board . . . issue . . . bonds ... for the purpose of paying the cost of acquiring the existing facilities for a county community hospital or purchasing a site and constructing thereon a county community hospital and purchasing suitable equipment for the same . . . .”

County clerks have power to call special sessions upon 5 days’ notification by publication in three public places. § 23-154, R. R. S. 1943. In Morris v. Merrell, 44 Neb. 423, 62-N. W. 865 (1895), notification of a special session to the three commissioners or to the public was not given. The court held that an order by two of the commissioners for location and construction of a drainage ditch was void. Lack of jurisdiction was properly emphasized under the circumstances.

The applicable statutes provide: “The public policy of the State of Nebraska is that all public meetings should be preceded by some publicized notice ... in order that the citizens of the state can intelligently exercise their democratic privilege of appearing at public sessions of governmental bodies . . . .” § 84-1402, R. S. Supp., 1967. “Any formal action of any type, including expenditure of funds, . . . taken at any meeting other than while open to the attendance of the public, shall be void.” § 84-1405, R. S. Supp., 1967.

The initiative petition concededly was good. The board’s calling the election in response to it was ministerial and nonreviewable by appeal or error. See, § 23-343, R. S. Supp., 1967; Chaloupka v. Area Vocational Tech. School No. 2, 184 Neb. 196, 165 N. W. 2d 719 (1969). Public notification of meetings has not outranked the initiative on the scale of values for subsidiarity. The Legislature in encouraging the citizen to participate in local government has not set its policy at cross-purposes,. Lack of notification to the public concerning a special meeting of a county board to call an election upon initiative petition under section 23-343, R. S'. Supp., 1967, is insufficient to invalidate the resulting election. Cf. Inslee v. City of Bridgeport, 153 Neb. 559, 45 N. W. 2d 590 (1951).

On the ballot the words “acquiring the existing facilities” were an immaterial departure from the petition. The proposition was single. See Inslee v. City of Bridgeport, supra.

Gordon Memorial Hospital District, an independent district organized February 25, 1969, extends over parts of Cherry and Sheridan Counties. It possesses authority over annexation, land withdrawal, and dissolution upon approval of the voters. See §§ 23-343.30, 23-343.31,. and 23-343.35, R. R. S. 1943. Although two or more adjoining counties may issue joint bonds for hospital purposes under section 23-343.15, R. R. S. 1943, the county in relation to the hospital district remains the basic unit.

An independent hospital district by section 23-343.21, R. S. Supp., 1967, may fractionate territories of counties. Harm from such district levies is insufficient to' establish that levies by one of the counties for a county hospital violate Article I, section 25, or Article VIII, section 1, Constitution of Nebraska. Cf. City of Bellevue v. Eastern Sarpy County S. F. P. Dist., 180 Neb. 340, 143 N. W. 2d 62 (1966); City of Grand Island v. Ehlers, 180 Neb. 331, 142 N. W. 2d 770 (1966); Pleuler v. State, 11 Neb. 547, 10 N. W. 481 (1881). See, also, Simms v. County of Los Angeles, 35 Cal. 2d 303, 217 P. 2d 936 (1950).

Defendants were entitled to summary judgment.

Affirmed.