Sydow v. City of Grand Island

639 N.W.2d 913, 263 Neb. 389, 2002 Neb. LEXIS 55
CourtNebraska Supreme Court
DecidedMarch 8, 2002
DocketS-01-611
StatusPublished
Cited by34 cases

This text of 639 N.W.2d 913 (Sydow v. City of Grand Island) 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
Sydow v. City of Grand Island, 639 N.W.2d 913, 263 Neb. 389, 2002 Neb. LEXIS 55 (Neb. 2002).

Opinions

Connolly, J.

In this bypass appeal, we are asked to determine which statute applies when determining the number of signatures required to place an initiative that seeks to enact a sales tax to create an endowment fund for a city on an election ballot. Neb. Rev. Stat. § 18-2524 (Reissue 1997) pertains to initiative petitions in general and requires valid signatures totaling at least 15 percent of the qualified electors of the city. Neb. Rev. Stat. § 77-27,142.03 (Reissue 1996) pertains to elections regarding sales taxes and requires 10 percent of the votes cast at the last preceding municipal election.

The appellee, Alan Sydow, circulated an initiative petition which proposed that a half-cent sales tax be enacted to create an endowment providing moneys to the City of Grand Island’s general fund. He obtained sufficient valid signatures to meet the requirements of § 77-27,142.03, but not sufficient signatures to meet the requirements of § 18-2524. The appellants, the City of Grand Island, members of the city council, and the city clerk (collectively the City), refused to place the proposal on the ballot. The district court issued an alternative writ of mandamus requiring that the proposal be placed on the ballot. The City appeals. We affirm in part, and in part reverse and vacate.

BACKGROUND

Because of a stipulation, the facts of this case are undisputed. On April 8, 2000, Sydow, a citizen of Grand Island, filed an initiative petition for approval for circulation with the city clerk. The listed summary of the initiative stated that it was to enact a “720 sales tax for creating an endowment for the city.” The measure’s defined purpose stated that the proceeds of the tax “shall be used to purchase 12-month U.S. Treasury bills. The interest generated shall be used to fund the city’s general budget. The [392]*392principal shall continue to accumulate and shall not be spent except as directed by voters at an election.” Sydow’s intent was that after a period of time, interest from the endowment would fully fund city services, thereby eliminating sales and property taxes. On April 10, the clerk advised Sydow that the initiative petition was in the proper form for circulation, and the petition was then circulated to obtain signatures.

On October 10, 2000, Sydow filed signed petitions with the city clerk. At a November 6 city council meeting, the council passed a resolution to request the election commissioner to verify the signatures on the petition and resolved that under § 18-2524, there must be valid signatures equal in number to at least 15 percent of the qualified electors of the city. According to records of the election commissioner, this number is 3,601. Sydow, however, maintained that he was proposing the enactment of a sales tax and that under § 77-27,142.03, the number of valid signatures required was 10 percent of the votes cast at the last preceding municipal election. According to the records of the election commissioner, this number is 1,248.

The parties stipulated that on November 27, 2000, the election commissioner formally notified the city council that the number of valid signatures on the petition totaled 1,449. The parties further stipulated that the election commissioner complied with the provisions of Neb. Rev. Stat. § 18-2518 (Reissue 1997) when she provided the notification. The election commissioner verified that the petition had 100 percent of the required signatures if § 77-27,142.03 applied and that it had less than 100 percent of the required signatures if § 18-2524 applied. The City then refused to proceed with an election on the proposal.

On December 29, 2000, Sydow filed a pleading entitled “Petition for Mandamus and Affidavit” seeking to compel the City to place the proposal on the ballot of the next election. The factual allegations set forth in the petition deal exclusively with the dispute between Sydow and the City regarding which statute governs the number of signatures required to place the measure on the ballot. Sydow alleged no facts regarding a dispute as to the validity of the measure if enacted. However, in addition to mandamus, Sydow’s prayer for relief included a request that the court enter a declaratory judgment that the measure proposed by [393]*393the petition “is a subject, which may be enacted by the initiative petition process and is otherwise validly and lawfully proposed under the applicable provisions of law.” The City raised no issue regarding the legality of the proposed endowment in its answer to Sydow’s petition, nor did it affirmatively seek declaratory relief on this issue.

At the hearing on the show cause why an alternative writ of mandamus should not be issued, the City stated, “We’re not here to show cause. We’re here to evidence compliance with what’s ordered.” The district court found that the petition stated an initiative for a sales tax and that § 77-27,142.03 applied. The court concluded that there was a sufficient number of valid signatures to place the proposal on the ballot. The court then concluded that mandamus was a proper remedy and issued an alternative writ of mandamus. The court also granted Sydow’s request for a declaratory judgment. The court made no determination on the validity of the actual creation of an endowment fund, stating that the endowment issue was not before the court.

At the show cause hearing on the alternative writ, the City argued that it would not have statutory authority to create the endowment proposed by Sydow. The City argued that Neb. Rev. Stat. § 77-27,146 (Reissue 1996) required that sales taxes be deposited in the general fund of the City and that Neb. Rev. Stat. § 13-504 (Cum. Supp. 2000) limited the amount of reserves the City could hold in its general fund. The City then stated, without presenting any formal evidence, that it was already near the statutory limit for holding reserves. Sydow protested to the court the City’s raising of the validity of the proposal because the City had previously stated that it would waive any argument to show cause that it would not comply with the writ. Sydow also reminded the court that it had previously stated that it would not decide the issue of whether an endowment could be created unless the proposal were later enacted by the voters. Sydow argued that the validity issue would be dealt with if the proposal were enacted. Referring to the order dealing with the alternative writ, the court then stated:

Previously I found that the initiative petition was a petition for a half-cent sales tax and that the relator obtained enough signatures to put the sales tax issue on the ballot. I made no [394]*394determination at that time on whether the endowment fund would be created or that there was a required number of signatures for the creation of an endowment fund.

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Bluebook (online)
639 N.W.2d 913, 263 Neb. 389, 2002 Neb. LEXIS 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sydow-v-city-of-grand-island-neb-2002.