dissenting.
I respectfully dissent from the opinion adopted by the majority in this case. I do not think the majority opinion responds properly to the questions presented for consideration and determination. I think it is in essence a long step toward destruction of the constitutional division of the powers of government. To my mind it is an unwarranted invasion of the legislative by the judicial ■department.
This is an appeal from further proceedings in Noble v. City of Lincoln, 153 Neb. 79, 43 N. W. 2d 578, wherein the opinion was filed July 13, 1950.
The majority opinion here draws by quotation copiously from the former opinion, but these quotations, taken as they are out of context, and the conclusions based thereon, do not, as I view them, properly reflect the true purport and meaning of that opinion or its result, and do not contain an application of constitutionally and traditionally appropriate principles.
I shall not attempt to set forth in detail what I think are the specific fallacies of the majority opinion. I prefer simply to set forth what I think a proper opinion should contain. This together with the former opinion I think will demonstrate the fallacies of which I make complaint.
The question involved in the former appeal was a single one defined and declared in the opinion as follows: “The question for determination here therefore is as to whether or not the petition states a cause, of action.”
The adjudication therein was pronounced as. follows: “For the reasons herein set forth the decree of the district court denominated journal entry is reversed and the *476cause remanded with directions to enter a decree in accordance herewith.”
The decree of the district court sustained a demurrer to the petition and dismissed the action. The adjudication here meant, and could not have meant more, that the district court was directed to vacate the dismissal and overrule the demurrer.
This was never done. Had it been done the defendants would have had the right to answer. “Upon a demurrer being overruled, the party who demurred may answer or reply if the court be satisfied that he has a meritorious claim or defense and did not demur for delay.” § 25-851, R. R. S. 1943.
There is nothing to indicate that if the defendants had filed an answer it would have been rejected on the ground that it did not set forth a meritorious defense.
After the opinion of this court was filed and on August 16, 1950, a mandate was issued to the district court as follows:
“This cause coming on to be heard upon appeal from the district court of Lancaster county, was argued by counsel and submitted to the court; upon due consideration whereof, the' court finds error apparent in the record of the proceedings and judgment of said district court and finds that the holding of the contemplated election would be invalid and that an injunction to restrain the holding of such election is proper, and finds further that the city council should be declared to be under a duty and obligation to proceed with the construction of an auditoruim pursuant to the amendments to the city charter now in existence and on the site which has been procured for that purpose. It is, therefore, considered, ordered and adjudged that said judgment of the district court be, and hereby is, reversed and cause is remanded with directions to enter a decree in accordance with the opinion of this court this day filed herein; * * *.”
No further proceedings were had until April 16, 1953, *477when judgment was apparently rendered on the mandate by the district court. This judgment does not appear as such in the transcript but it appears by recital in a further judgment on the mandate entered May 7, 1953, as follows: “ ‘On motion of plaintiffs through counsel in open court, judgment is hereby entered in accordance with the opinion of the Supreme Court filed in this cause.’ ”
The judgment of May 7, 1953, quotes the mandate and contains, among other things not necessary to quote here, the following: “IT IS THEREFORE, CONSIDERED, ORDERED, AND ADJUDGED by this court, that judgment be and hereby is entered in accordance with said mandate and judgment of the Supreme Court.”
No appeal has been taken from this judgment. It has become final and binding upon the parties to it. Kerr v. McCreary, 86 Neb. 786, 126 N. W. 299; State v. Several Parcels of Land, 87 Neb. 84, 126 N. W. 1001.
This judgment amounts to and is an adjudication that the city of Lincoln is required to do and perform in accordance with what this court said were its duties and obligations if the allegations of plaintiffs’ petition were true. The city does not contend otherwise. In truth this is admitted by pleadings and briefs filed herein.
One of the effects of this judgment was to judicially declare that from the date of adoption of the amendments to the city charter the city and its duly constituted officers were bound by the amendments and were under a bounden duty to proceed agreeable to the terms and requirements thereof.
Another effect of the judgment was to provide a means of compelling performance of the duty imposed by the amendments.
On June 19, 1953, the plaintiffs filed a petition in the district court denominated Petition for Further Relief, the primary purpose of which was to secure a mandatory order requiring the city and its officers to proceed with the necessary steps to construct, and to start con*478struction of, an auditorium pursuant to the charter amendments. They prayed for an order against defendants to show cause why they should not so proceed.
An order to show cause was issued and in response thereto the defendants filed an answer and showing. In the answer and showing the defendants in substance set forth that efforts, which were reasonable under the circumstances, had been made over the entire period to comply with the charter amendments.
In an effort to show that there should not be an order requiring them to further proceed at this time and that performance should be held in abeyance they pleaded that petitions under law and the charter had been filed seeking an election to determine whether or not the charter amendments involved herein should be repealed. The effect of the answer in this respect is to say that an election on the petitions is proper under law; that if the vote on the petitions was in favor of repeal the amendments would be repealed; that in that event the duty of the defendants would be removed; and that in the light of these eventualities an order of court requiring them to proceed pending the outcome of an election would be premature.
To the answer the plaintiffs filed a reply. By it the issues presented by the petition and answer were generally joined. Further it declared that the proposed election referred to in the answer would be void and a nullity.
Certain parties were permitted to intervene herein but it is not deemed necessary to do more than to note that fact since no adjudication was ever made with reference to them except that they were permitted to intervene.
The case came on for trial to the court at the conclusion of which. a decree was rendered. The pertinent part of the decree is a finding that the city of Lincoln and the members of the city council showed sufficient ground for refusal at the time of the further relief sought *479by the petition of plaintiffs. Adjudication was made accordingly and the petition dismissed.
From the decree the plaintiffs have appealed.
A bill of exceptions has come to this court but it contains nothing pertinent to the issues involved except a stipulation of fact as follows: “At the present time, almost three years after the said opinion of the Supreme Court (the opinion filed July 13, 1950), no auditorium has been built,” and a further stipulation that there had been filed a sufficient petition of electors for the submission of repeal of the amendments of the charter which were involved in the original action.
The consideration and determination of this appeal must depend upon admissions in the pleadings and these stipulations.
This is true since there is nothing else in the record which this court may properly consider in determining whether or not the adjudication of the district court was correct. In effect the case comes here as a case for judgment on the pleadings except to the extent that the judgment may be influenced by the stipulations.
The admissions of pleadings when they are complete, unequivocal, and without controVersion will sustain a judgment.
The rule in this respect is stated as follows in 71 C. J. S., Pleading, § 160, p. 333: “A fact alleged in a complaint is sufficiently established by its admission in the answer. As long as it stands on the record a fact admitted by the plea or answer must be taken as true, becomes evidence in the case, and supports a presumption or inference of such other facts as normally follow from the establishment of such fact.”
In Fidelity Finance Co. v. Westfall, 127 Neb. 56, 254 N. W. 710, it was said: “Where an allegation in the petition is admitted by the answer, the fact is established for the purpose of the case, and the court cannot disregard it.” See, also, Bonacci v. Cerra, 134 Neb. 476, *480279 N. W. 173; Barry v. Barry, 147 Neb. 1067, 26 N. W. 2d 1.
The same rule applies in the case of admissions in a reply to an answer or other pleading. Bonacci v. Cerra, supra; Provident Savings & Loan Assn. v. Booth, 138 Neb. 424, 293 N. W. 293; In re Estate of McCleneghan, 145 Neb. 707, 17 N. W. 2d 923; Barnhart v. Henderson, 147 Neb. 689, 24 N. W. 2d 854.
The petition exclusive of the prayer is in 14 paragraphs. The defendants by their answer have admitted paragraphs 1 to 10 inclusive and paragraph 12. This is an admission of all of the substance of what has already been summarized herein as the basis of plaintiffs’ claimed right to further relief. The other three paragraphs, one of which is purely formal, are of no pertinence in the determination here.
The only parts of the answer of the defendants other than the admissions are the allegations that valid petitions have been filed for an election upon the question of whether or not the charter amendments in question shall be repealed, that the city has been proceeding toward construction, and a prayer for dismissal and equitable relief.
The reply does no? admit the authenticity and sufficiency in form of the petitions for an election but this is admitted in the stipulations contained in the bill of exceptions. Further replying the plaintiffs allege that any such election would be void and a nullity on the basis that the proposed amendment which was considered in the former opinion of this court was declared null and void.
The effect of the reply and stipulations is to say that the defendants were and are under a duty and obligation and bound to proceed with the construction of an auditorium pursuant to the terms of the amendments to the city charter and that injunction was proper to restrain the holding of an election on a proposed amendment the purpose of which was to change the site of the *481auditorium from the site designated by the charter amendments.
The further effect is to say that there has been filed a sufficient petition for an election on the question of whether the amendments shall be repealed.
The substantial contention and theory of the defendants with respect to this proposed election is that if the vote in favor of repeal is sufficient then any and all obligations flowing from the amendments and from the judgment on the mandate will be removed.
The substantial contention and theory of the plaintiffs is that the defendants are without legal power or authority to submit the propositions contained in the proposed repealing amendment at an election, and if it should be submitted and approved by the electors it would be null and void.
Specifically insofar as the record is concerned the finding and adjudication of the district court were based upon the theory of the defendants that delay was proper until the proposed election was held and the results ascertained. If any other considerations were involved they are not made to appear by the bill of exceptions or by admissions in the pleadings.
The plaintiffs contend that there can be no amendment or repeal of the amendments providing for the construction of the city auditorium and that an election having that for its purpose would be null and void.
The plaintiffs rely for support of their contention upon our former opinion in this case. The opinion however does not support that contention. A careful reading of that opinion discloses that the making of any such pronouncement was avoided.
The question presented by the petition in that case was that of whether there was a remedy in equity to prevent the city by election to amend the charter amendments by removing from the designated location and empowering the city council to designate a location, where the city of Lincoln by vote of electors had adopted *482amendments to its charter providing for the construction of a city auditorium at a designated location, authorizing a tax not to exceed $75,000 annually for a period of 10 years for street widening, purchase of site, erecting the building, and equipping and furnishing the proposed building; in pursuance of which the city issued $1,100,000 in general obligation bonds of which amount $715,000 in bonds were outstanding at the time of the commencement of the action; in further pursuance of which the site contemplated had been purchased for $46,750; in further pursuance of which street improvements at a cost of. $270,250 had been made; in further pursuance of which $22,943.50 for architect’s study, plans, and specifications had been expended; in further pursuance of which.$2,000 as part payment for an ice rink had been spent; in further pursuance of which tax levies in varying amounts from 1940 to 1949 inclusive had been made for the retirement of the general obligation bonds; and in further pursuance of which the city was authorized to issue bonds in the additional amount of $1,500,000 without further consent of the voters.
This court in the former opinion held that there was a remedy in the following statement: “The conclusion arrived at, therefore, on the facts as set forth in the petition and under the noted exceptions to the rules that the courts will not in advance of passage or adoption of legislation enjoin or inquire into the validity or constitutionality thereof, is that a situation has been presented which calls for a judicial declaration that the holding of the contemplated election would be invalid, and that an injunction to restrain the holding of such election is proper.”
It therefore becomes necessary to look elsewhere for authority for the determination of this question.
The authorities cited and the reasoning advanced by the defendants support a conclusion generally that that which may be put into a city charter by amendment *483properly adopted may be in the same manner removed. We think the conclusion contended for in this respect "by the defendants must be sustained.
Article XI, section 2, of the Constitution of Nebraska, authorizes the adoption of a charter for its own government by any city having a population in excess of 5,000 inhabitants. Article XI, section 4, of the Constitution, makes provision for amendments to the charter. The section contains no limitation as to the subject matter-which shall be contained in an amendment. The section also provides for repeal. It provides that repeal shall be by electoral vote the same as amendment.
The people of the city of Lincoln in the adoption of their charter acted legislatively and an election the purpose of which is to determine whether or not there shall be an amendment thereof would be legislative action. Consumers Coal Co. v. City of Lincoln, 109 Neb. 51, 189 N. W. 643; Noble v. City of Lincoln, supra.
“It is a general rule that the courts will not in advance of passage or adoption of legislation enjoin such legislation or inquire into the validity or constitutionality thereof.” Noble v. City of Lincoln, supra.
Exceptions to this general rule have been noted in Noble v. City of Lincoln, supra.
We do not think the exceptions noted in that opinion may be said to have controlling significance here where the proposal is for the abandonment of the entire auditorium project by repeal of the amendments providing for it.
It is true that elements regarded as basic in the exceptions to the general rule noted therein may exist here but the opinion did not turn on basic elements contained in the noted exceptions. It turned upon alleged facts, which, if true, would cause irreparable loss and damage, not by an abandonment of the primary purpose but by changing an incident of that purpose.
Here on the other hand the aspect of the proposal is entire and is not limited to an incident, and the purpose *484and consequences of the proposed repeal cannot be said factually or presumptively factually to be known. They can only be arrived at by conjecture and speculation.
Under these circumstances it appears that the general rule and not any exception should be controlling.
Under the general rule the courts may not enjoin the enactment of legislation validly presented at an election and may not encroach upon legislative processes and speculate as to whether or not the enactment will be passed, or if passed, what questions may arise in the future involving its validity. 28 Am. Jur., Injunctions, § 72, p. 267, § 176, p. 365, § 177, p. 366; Schroeder v. Zehrung, 108 Neb. 573, 188 N. W. 237; Goodland v. Zimmerman, 243 Wis. 459, 10 N. W. 2d 180; People ex rel. Fitnam v. City of Galesburg, 48 Ill. 485; People v. McWeeney, 259 Ill. 161, 102 N. E. 233, Ann. Cas. 1916B 34; Lamb v. B., C. R. & M. R. Co., 39 Iowa 333.
We hold therefore the duly constituted officers of the city of Lincoln may properly and legally submit, by proper petition, to the electors of the city the question of whether or not the amendments providing for the construction and location of a city auditorium shall be repealed.
We further hold that • if the question shall be submitted on valid petition and that the proposition is carried by a sufficient vote that such vote would effect a repeal, and in that event the present duty to construct an auditorium would no longer exist.
Thus by reason of the judgment on the mandate the defendants are under an obligation to proceed with the construction of an auditorium. Also they are under a mandate imposed according to law by reason of the filing of the petitions for an election to submit to the people of the city of Lincoln the question of whether or not the obligation to build the auditorium shall be withdrawn.
If they are required to proceed at once, in reason and of *485course, expense would be entailed. If on the holding of the election the voters shall validly withdraw the obligation to construct the auditorium, again in reason and of course, this expense would occasion a loss which could never be retrieved.
It would appear therefore that justice and equity and a due regard for the best interests involved should permit a further delay in the performance of the obligation of the city to build the auditorium sufficient to permit the holding of an election based on the petitions on file with the city. Hiddleson v. City of Grand Island, 115 Neb. 287, 212 N. W. 619.
Wenke, J., concurs in this dissent.