State ex rel. Scherer v. Madison County Commissioners

527 N.W.2d 615, 247 Neb. 384, 1995 Neb. LEXIS 38
CourtNebraska Supreme Court
DecidedFebruary 10, 1995
DocketNo. S-93-129
StatusPublished
Cited by26 cases

This text of 527 N.W.2d 615 (State ex rel. Scherer v. Madison County Commissioners) 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
State ex rel. Scherer v. Madison County Commissioners, 527 N.W.2d 615, 247 Neb. 384, 1995 Neb. LEXIS 38 (Neb. 1995).

Opinion

Lanphier, J.

The relators prayed in the district court for Madison County for an alternative or peremptory writ of mandamus against the Madison County Board of County Commissioners. The relators sought to require the respondents to expend Madison County tax funds for the improvement and maintenance of public roads in the sanitary and improvement district (S.I.D. No. 3) in which the relators reside. The county had maintained the roads in the past, but stopped in 1992, claiming that it was the duty of S.I.D. No. 3 to so maintain these roads. The district court denied the writ, and the relators appealed to the Nebraska Court of Appeals. The Court of Appeals concluded that Madison County did not have a legal duty to maintain the roads in S.I.D. No. 3 and affirmed the judgment of the district court. See State ex rel. Scherer v. Madison Cty. Comrs., 94 NCA No. 27, case No. A-93-129 (not designated for permanent publication). We agree that Madison County did not have a legal duty to maintain the roads within S.I.D. No. 3 and, therefore, affirm.

BACKGROUND

The relators live in and own a residence situated in S.I.D. No. 3 in Madison County. They live on a platted street in the Eastern Heights First Addition called Jo Deb Drive.

The Eastern Heights First Addition was surveyed and platted in 1967. On August 7, 1967, John, Letitia, and Adelia Maurer, who apparently then owned the land, dedicated Jo Deb Drive and the other streets in the plat to the use and benefit of the [386]*386public. S.I.D. No. 3’s articles of incorporation were filed on July 11, 1968. S.I.D. No. 3 was organized under Neb. Rev. Stat. §§ 31-727 to 31-762 (Reissue 1968). S.I.D. No. 3 has never received title to any public streets in the Eastern Heights First Addition.

Madison County controlled, maintained, and repaired Jo Deb Drive and the other streets in S.I.D. No. 3 until June 16, 1992. Madison County also listed the roads in S.I.D. No. 3 on its inventory for obtaining money allocated to the county road-bridge fund. On June 16, the county commissioners passed a resolution providing that the county immediately discontinue all road maintenance services and snow removal in 5.1.D. No. 3 and other sanitary and improvement districts in the county.

ASSIGNMENTS OF ERROR

In their petition for further review, the appellants-relators assign five errors, which all raise the same issue: whether Madison County has a ministerial duty to maintain the roads in 5.1.D. No. 3 such that a court may compel the county to fulfill its duty by means of a writ of mandamus.

STANDARD OF REVIEW

Mandamus is a law action and is defined as an extraordinary remedy, not a writ of right, issued to compel the performance of a purely ministerial act or duty, imposed by law upon an inferior tribunal, corporation, board, or person, where (1) the relator has a clear right to the relief sought, (2) there is a corresponding clear duty existing on the part of the respondent to perform the act in question, and (3) there is no other plain and adequate remedy available in the ordinary course of the law. State ex rel. Wieland v. Beermann, 246 Neb. 808, 523 N.W.2d 518 (1994).

ANALYSIS

In an action in mandamus, the relator has the burden of proof and must show clearly and conclusively that he is entitled to the particular thing he asks and that the respondent is legally obligated to act. State ex rel. Goetz v. Lundak, 199 Neb. 585, 260 N.W.2d 589 (1977). Thus, in order to prevail, the relators [387]*387must establish that Madison County has a ministerial duty to maintain the subject roads within S.I.D. No. 3.

A county has only those powers and duties conferred upon it by the Legislature. Rock Cty. v. Spire, 235 Neb. 434, 455 N.W.2d 763 (1990). Madison County, therefore, only has a duty to maintain the roads within S.I.D. No. 3 if there is a statutory duty. Numerous sections in various chapters of our statutes are related to the issue of public roads and the maintenance thereof. However, there is no coherent statutory scheme.

In construing these various sections, we will endeavor, as we must, to give each section its intended effect as shown by the statutory language. In construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense. In re Application of Jantzen, 245 Neb. 81, 511 N.W.2d 504 (1994). Statutes relating to the same subject matter are in pari materia, and a court will construe them together so as to determine the intent of the Legislature and to maintain a consistent and sensible scheme. State on behalf of J.R. v. Mendoza, 240 Neb. 149, 481 N.W.2d 165 (1992).

§ 39-1402

Relators rely on Neb. Rev. Stat. § 39-1402 (Reissue 1993) to establish Madison County’s duty. Section 39-1402 provides:

General supervision and control of the public roads of each county is vested in the county board. The board shall have the power and authority of establishment, improvement, maintenance and abandonment of public roads of the county and of enforcement of the laws in relation thereto as provided by the provisions of Chapter 39, articles 14 to 20, except sections 39-1520.01 and 39-1908.

In SID No. 1 v. County of Adams, 209 Neb. 108, 306 N.W.2d 584 (1981), we addressed this statute and whether under its provisions a county could be compelled to maintain roads created and owned by a sanitary and improvement district. We determined that § 39-1402 was a statute of general application. However, we also determined that chapter 31, article 7, of the [388]*388Nebraska Revised Statutes, which covers the entire subject of sanitary and improvement districts within the state, was a specific act. The specific act, which in part conveyed to sanitary and improvement districts the authority and power to construct and maintain roads, among other powers, created an exception to the general legislation. The exception, we held, removed from the county the obligation of maintaining the roads.

Relator argues that SID No. 1 is inapplicable, since the roads in the case at hand were not built or owned by S.I.D. No. 3. The veracity of relator’s assertion cannot be verified based upon the evidence before us. However, because we conclude that construction and ownership of the roads is of no consequence, we deem that SID No. 1 is dispositive.

Section 39-1402 outlines a county’s authority over the “public roads of each county.” Neb. Rev. Stat. § 31-740

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Bluebook (online)
527 N.W.2d 615, 247 Neb. 384, 1995 Neb. LEXIS 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-scherer-v-madison-county-commissioners-neb-1995.