Redell v. Moores

Sullivan, J.,

concurring.

I dissented from the judgment in State v. Moores, 55 Nebr., 480; and in State v. Kennedy, 60 Nebr., 300, which was controlled by the doctrine of res adjudicaba, I said with respect to the decision in the Moores Case: “The Moores Case lays down the doctrine that Avhatever the court may conceive to be the spirit of the constitution is to be regarded as part of the paramount law. While the decision, by recognizing and enforcing the asserted right of local self-government, is conceded to rest upon a sound political principle, it Avas rendered by a divided bench, and, as a judicial pronouncement, has been much criticised. If it is to be acquiesced in and accepted as a rule of construction, the constitution of the state is to be fully knoAvn only by studying the theory of the judges who are chosen to expound it; it will,expand or contract with every fluctuation of the popular will which produces a change in the personnel of the court, and the limitations upon legislative power avíII be as unknown and unknowable as were the rules of equity in the days when the chan*232cellor’s conscience was the law of the land. It is the opinion of the writer that the decision is thoroughly vicious; that it strikes a lethal blow at a co-ordinate branch of the government and ought to be repudiated and condemned.” Still entertaining these views, — still believing that all the governmental powers of municipal corporations come from the legislature and are to be found only in living statutes, — I could not, of course, do otherwise than give my approval to the conclusion reached by the department.

Note. — Legislative Control Over Municipal Corporations. — A municipal coloration is, so far as its purely municipal relations are concerned, simply an agency of the state "for conducting the affairs of government, and as such is subject to the control of the legislature. Williams v. Eggleston, 170 U. S., 304. Cities are auxiliaries of the state in the business of municipal rule, but they can not have the least pretension to sustain their privileges or their existence upon anything like a contract between themselves and the legislature. Mt. Pleasant v. Beckwith, 100 U. S., 514. A municipal corporation is a public institution, created for public purposes, and is a political subdivision or department of the state, governed, regulated and constituted by public law. The original power to control- as well as to create them, is in the legislature. Payne v. Treadwell, 16 Cal., 220. Under the township system of New England, a much stronger argument can be advanced for local self-government than in a new state, like Nebraska, admitted since the adoption of the federal constitution. For example, Rhode Island, when it became a chartered colony, 1647, under the charter of March 14, 1643-4, was formed by the union of the four independent settlements of Providence, Newport, Portsmouth and Warwick. These settlements, at the time of the union under the charter, reserved the right to manag'e their own local affairs. When Rhode Island ratified the Federal Constitution, May 39, 1790, she did not follow the example of the other states by adopting a state constitution; but operated under the charter of 1663 until 1843, a period of 180 years. When new towns were incorporated, it was with the express statement that each new town had all the powers of the old towns. So local municipal government became a vested right. Encyclopedia Brittanica, vol. XX., p. 539; Harvard Law Review, February, 1900, 447. Note by Amasa M. Eaton, to City of Newport v. Horton, 50 L. R. A., 330. See, also, authorities cited in briefs and opinions (majority and minority), State v. Moores, 55 Nebr., 480.