Updike v. City of Omaha

Letton, J. The first questions raised are: Whether the so-called court of condemnation is a court, the creation of which is prohibited by the Constitution; and whether, •if not a court, the members of the body may be appointed by this court, or by the chief justice. The power to exercise the right of eminent domain must be exercised by, or conferred ..by, the legislature, and when it is granted to a municipal- corporation, or to a public service corporation, that body must-determine .how far it will make use of the power thus conferred. This' is an executive or administrative act. [786] When it comes to the stage of compensating the owner of the property by ascertaining the value of the property taken, or damaged, this requires the exercise of judicial functions. The preliminary steps in such proceedings are not always in the form of court proceedings. They are more often taken with less formality, but nevertheless with essential prerequisites prescribed in order to secure justice and impartiality in the finding. A record is required to be made in such form as to show definitely the amount of the award, mid, if either party does not accept the award, .to furnish the basis for an appeal to a regularly constituted court where rights may be determined by a jury. These preliminary steps are a part of the procedure, and, while they may go no- further than the making and acceptance of the award, they are judicial, and not legislative or executive, in character. It is pointed out in State v. Neble, 82 Neb. 267: “Many executive or administrative acts performed by judicial officers, and many judicial acts "performed by ministerial officers, are and must be held valid. * * * The appointment of an' officer might properly, we think, be classed as the exercise' of an executive or administrative function, at least not judicial. Yet courts and judges frequently find it necessary to make such appointments in order that the judicial functions of the courts may be freely exercised.- It often happens that the courts or judges are clothed with this appointing power where the appointee may not be required to discharge any duty which could be in any way ancillary to the exercise of the judicial functions of the court or judge making the appointment, and yet the validity of the appointment could not be successfully questioned, for the reason • that the person appointed would exercise judicial functions in the discharge of the duties imposed under the appointment.” [787] While the proceedings are judicial in .their nature, it is unnecessary that they be conducted in their inception by a court, and in fact in every instance in which condemnation proceedings are carried on in this state, so fár as to the writer known, they are not conducted in or by any regular judicial tribunal. While the appraisers required to be appointed by the. statute under consideration are called a court of condemnation, the fact that this term is used is immaterial. Such bodies have been variously termed boards of assessment, of commissioners, of appraisers; but, whatever the nomenclature, they exercise practically the- same functions, sometimes with, and sometimes without, the assistance of officers of regularly constituted courts. The board thus constituted cannot be a “court” under the Constitution of the state, since the legislature has no power to constitute courts other than those named in that instrument, except “courts inferior to the district courts” for cities and ineorporatéd towns, and we áre convinced that it was not its intention to exceed .its authority in this respect. The objections made would apply to the appointment of appraisers in condemnation proceedings by the county judge. Such proceedings are not in the county court. Mattheis v. Fremont, E. & M. V. R. Co., 53 Neb. 681; Brown v. Chicago, R. I. & P. R. Co., 64 Neb. 62. We find no difficulty in holding, therefore, that no new court was created by the act in violation of article VI of the Constitution, and that the vesting of the power in this court, or in the chief justice, to appoint the members of the board of appraisers does not violate the constitutional requirements (article II) that the executive, legislative and judicial departments of the government be kept separate, “and no person or collection of persons being one of those departments, shall exercise any powers properly belonging to either of the others,\¡ except as hereafter' expressly directed or permitted.” [788] Another question raised is whether it is within the power of. the legislature to impose, the duties of making such appraisement upon district judges in the state. As' we have seen, the act of appraising the valúe of property involves' the exercise of judicial functions — facts must he collated and compared in the mind' of the appraiser, a standard of value must be reached, and the property measured by that standard. It is competent for the legislature to select a. class from which- appraisers may be chosen," and men of judicial training and experience are no doubt well qualified for such duties. It is not absolutely clear that the law constitutes a violation of the Constitution in this respect. The benefit of the doubt in such cases must always be given to the legislature, and it is our duty to uphold the law, unless it is clearly void. ' In this connection, we deem it advisable to point-out that there is an increasing tendency, in this and other states, to call upon courts, or judges, to perform duties outside' of their proper functions. This is a tendency which should be repressed rather than encouraged. The duties properly belonging to judicial tribunals are usually sufficiently onerous, and the work of the judges sufficiently arduous, to require their best efforts and occupy their full time, and they should not be subjected to the performance of other duties. It is also argued that the sections of the act named constitute an amendment to sections 4329 and 4330, Rev. St. 1913. We think this contention is not well founded. These sections provide that the mayor and council may appropriate private property “for the use of the city for * * * gas works,” but do not provide for the appropriation and taking over of existing gas works. We are convinced that the power formerly granted was only to appropriate real estate upon which the city might establish gas works, and that the present act is not subject to the objection [789] made upon this score. The act, furthermore, in this respect is clearly supplemental and germane to the general charter, since it supplies a method of appropriating gas works not theretofore provided for. It is alleged that, after the act had been passed by the house, it was amended in the senate; that the bill went to a conference committee; that the house adopted the report of the conference committee; but there is no record of any action taken by the senate upon the committee’s report. It is contended that the act was void.because the legislative journals did not show that the senate concurred in the report of the conference committee. The bill is signed by the president of the senate, the speaker of the house, and the governor. In State v. Dean, 84 Neb. 344, it was held that the enrollment, authentication, and approval of an act of the legislature are prima facie evidence of its due enactment; that the silence of the journals is not conclusive evidence of the nonexistence of a fact which ought to be recorded therein regarding the enactment of the law; and that the act attacked in that case was not invalidated because of the silence of the senate journals as to concurrence in the formal amendment by the house. These principles determine this contention adversely to the petitioner. We conclude that the portion of the act assailed, in so far as it affects the matter under consideration, is valid. The petition to set aside the former order is Denied. Rose, J., dissents. Cornish and Aldrich, JJ., not sitting.