State ex rel. Lanman v. Board of Cty. Commissioners

State of NebraSka ex rel . G leNN r. laNmaN aNd
tereSa J. laNmaN, appellaNtS, v. board of
C ouNty C ommiSSioNerS of dawSoN C ouNty,
NebraSka , et al ., appelleeS, aNd SaNitary
aNd improvemeNt diStriCt No. 1 of G oSper
C ouNty aNd dawSoN C ouNty, NebraSka ,
iNterveNor-appellee .
763 N.W.2d 392
Filed April 3, 2009. 	No. S-07-1201.
1. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, giving that party the benefit of all reasonable
inferences deducible from the evidence.
3. Statutes: Appeal and Error. Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
4. Interventions. As a prerequisite to intervention under Neb. Rev. Stat. § 25-328
(Reissue 2008), the intervenor must have a direct and legal interest of such char-
acter that the intervenor will lose or gain by the direct operation and legal effect
of the judgment which may be rendered in the action. In determining whether
such a direct and legal interest exists, it does not matter whether the interests are
already adequately represented by another.
5. ____. Whether a party has the right to intervene in a proceeding is a question
of law.
6. Mandamus: Words and Phrases. 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, corpora-
tion, 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, and (3) there is no other plain and adequate remedy available in
the ordinary course of law.
7. Mandamus: Proof. In a mandamus action, the relator has the burden of proof
and must show clearly and conclusively that such party is entitled to the particu-
lar remedy sought and that the respondent is legally obligated to act.
8. Statutes. If the language of a statute is clear, the words of such statute are the end
of any judicial inquiry regarding its meaning.
9. ____. Where statutory construction is called for, a court looks to the statute’s pur-
pose and then construes the statute in a reasonable manner that will best achieve
that purpose, rather than interpreting the statute in a way that would defeat
its purpose.
492 	277 NebRASkA RepoRtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

10. ____. A court must attempt to give effect to all parts of a statute, and if it can
be avoided, no word, clause, or sentence will be rejected as superfluous or
meaningless.
Appeal from the District Court for Dawson County: doNald
e. rowlaNdS, Judge. Affirmed.
terry k. barber and Joshua D. barber, of barber & barber,
p.C., L.L.o., for appellants.
kurt R. Mcbride, Chief Deputy Dawson County Attorney,
for appellees.
Robert J. Huck and David J. Skalka, of Croker, Huck, kasher,
DeWitt, Anderson 	& 	Gonderinger, 	L.L.C., 	for 	intervenor-
appellee.
H eaviCaN, C.J., wriGHt, C oNNolly, StepHaN, mCC ormaCk ,
and miller-lermaN, JJ.
StepHaN, J.
the principal issue in this appeal is one of statutory inter-
pretation. Neb. Rev. Stat. § 17-201 (Reissue 2007) permits the
incorporation of a village upon the petition of “a majority of
the taxable inhabitants of any town or village, not incorpo-
rated under any laws of this state.” the issue presented here
is whether this statute permits the incorporation of a village
lying entirely within the boundaries of an existing sanitary and
improvement district.
bACkGRoUND
In 2003, a petition was filed in the district court for Gosper
County seeking the formation of Sanitary and Improvement
District No. 1 of Gosper County and Dawson County (SID
No. 1) pursuant to Neb. Rev. Stat. §§ 31-727 to 31-793 (Reissue
1998 & Supp. 2003). Several persons, including Glenn R.
Lanman and teresa J. Lanman, objected to the formation of
the district, but their objections were overruled by the court.
on February 10, 2005, the court entered an order granting the
petition and declaring SID No. 1 to be “a public corporation of
this state.” the order stated that SID No. 1 would “encompass
all of the property abutting Johnson Lake” and the “centerline
StAte ex ReL. LANMAN v. boARD oF Cty. CoMMISSIoNeRS 	493
Cite as 277 Neb. 492

of the paved road which surrounds the lake (Johnson Lake
Drive).” In an appeal brought by the objectors, we affirmed
this order.1 Additional facts pertinent to the formation of SID
No. 1 are set forth in that opinion. briefly summarized, the
area around Johnson Lake was experiencing increased prob-
lems with wastewater treatment and disposal, and concerned
residents determined that “an SID would be the best governing
vehicle to facilitate the development and operation of a central-
ized wastewater system.”2
After the issuance of our opinion affirming the formation
of SID No. 1, the Lanmans and some of their neighbors who
lived along Johnson Lake submitted a signed petition to the
board of County Commissioners of Dawson County (board)
seeking incorporation of “the Village of Johnson Lake” pur-
suant to § 17-201. the land described in the plat of the
proposed village was situated entirely within the boundaries
of SID No. 1. Acting on the advice of the Dawson County
Attorney, the board denied the petition because the proposed
village was situated entirely within an already incorporated
area. the Lanmans then commenced a mandamus action
against the board and the individual commissioners, alleging
that upon receipt of the petition, they had a ministerial duty
pursuant to § 17-201 to declare the village incorporated and
declare its metes and bounds. SID No. 1 was granted leave
to intervene and filed an answer in intervention in which it
asserted various defenses, including an allegation that the
proposed village could not be lawfully incorporated because it
was entirely within the boundaries of SID No. 1, a municipal
corporation.
Subsequently, the board, the commissioners, and SID No. 1
filed a joint motion for summary judgment. After conducting
an evidentiary hearing, the district court granted the motion.
It reasoned that the board’s denial of the petition was correct
as a matter of law because the petition failed to comply with
the signature requirements of § 17-201 and because the village
could not legally be incorporated within the boundaries of SID
1 In re Petition of SID No. 1, 270 Neb. 856, 708 N.W.2d 809 (2006).
2 Id. at 859, 708 N.W.2d at 814.
494 	277 NebRASkA RepoRtS

No. 1. the Lanmans filed this timely appeal, which we moved
to our docket pursuant to our statutory authority to regulate the
caseloads of the appellate courts of this state.3
ASSIGNMeNtS oF eRRoR
the Lanmans assign, restated, consolidated, and renum-
bered, that the district court erred in (1) allowing SID No. 1
to intervene, (2) determining that a village may not be incor-
porated within the boundaries of a sanitary and improvement
district, (3) determining that the petition seeking incorporation
of the village did not meet the statutory requirements, and (4)
sustaining the board’s objection to an exhibit at the eviden-
tiary hearing.
StANDARD oF ReVIeW
[1,2] Summary judgment is proper if the pleadings and
admissible evidence offered at the hearing show that there is
no genuine issue as to any material facts or as to the ultimate
inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.4 In
reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom
the judgment was granted, giving that party the benefit of all
reasonable inferences deducible from the evidence.5
[3] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.6
ANALySIS
iNterveNtioN
We first address the issue of whether the district court erred
in giving SID No. 1 leave to intervene in the mandamus action.
the Lanmans argue both that SID No. 1 lacked a direct and
3 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
4 Thone v. Regional West Med. Ctr., 275 Neb. 238, 745 N.W.2d 898 (2008).
5 Amanda C. v. Case, 275 Neb. 757, 749 N.W.2d 429 (2008).
6 Agena v. Lancaster Cty. Bd. of Equal., 276 Neb. 851, 758 N.W.2d 363
(2008); Niemoller v. City of Papillion, 276 Neb. 40, 752 N.W.2d 132
(2008).
StAte ex ReL. LANMAN v. boARD oF Cty. CoMMISSIoNeRS 	495
Cite as 277 Neb. 492

legal interest necessary for intervention and that the interven-
tion was procedurally improper.
[4,5] Intervention in Nebraska civil actions is generally gov-
erned by Neb. Rev. Stat. §§ 25-328 to 25-330 (Reissue 2008).
Section 25-328 provides:
Any person who has or claims an interest in the mat-
ter in litigation, in the success of either of the parties to
an action, or against both, in any action pending or to be
brought in any of the courts of the State of Nebraska, may
become a party to an action between any other persons
or corporations, either by joining the plaintiff in claiming
what is sought by the complaint, or by uniting with the
defendants in resisting the claim of the plaintiff, or by
demanding anything adversely to both the plaintiff and
defendant, either before or after issue has been joined in
the action, and before the trial commences.
As a prerequisite to intervention under this statute, the inter-
venor must have a direct and legal interest of such character
that the intervenor will lose or gain by the direct operation
and legal effect of the judgment which may be rendered in the
action.7 In determining whether such a direct and legal inter-
est exists, it does not matter whether the interests are already
adequately represented by another.8 Whether a party has the
right to intervene in a proceeding is a question of law.9 SID
No. 1 alleged the right to intervene because formation of the
village would improperly detach and remove property from
within SID No. 1’s boundaries and tax base without compli-
ance with the statutory requirements for detachment. For pur-
poses of determining the right to intervene, we must assume
that these allegations are true.10 We conclude that SID No. 1
alleged interests sufficient to permit it to intervene in the man-
damus action.
7 Spear T Ranch v. Knaub, 271 Neb. 578, 713 N.W.2d 489 (2006).
8 See Ruzicka v. Ruzicka, 262 Neb. 824, 635 N.W.2d 528 (2001).
9 Risor v. Nebraska Boiler, 274 Neb. 906, 744 N.W.2d 693 (2008); Spear T
Ranch v. Knaub, supra note 7.
10 See Spear T Ranch v. Knaub, supra note 7.
496 	277 NebRASkA RepoRtS

procedurally, SID No. 1 sought leave to intervene by motion,
which is inconsistent with the language in § 25-330 providing
that “intervention shall be by complaint.” Under a prior version
of the statute requiring that intervention be by “petition,” we
treated a motion setting forth the claimed basis for interven-
tion as a petition for intervention.11 the motion filed by SID
No. 1 set forth its claimed basis for intervening in the case, and
after the motion was sustained, SID No. 1 filed an answer in
intervention. this answer was a proper pleading, as SID No. 1
intervened on behalf of the respondents in resisting the claim
seeking a writ of mandamus. We have stated that intervention
statutes are to be liberally construed.12 Applying such construc-
tion here, we find no procedural bar to intervention and con-
clude that the district court did not err in granting SID No. 1
leave to intervene.
maNdamuS
[6,7] the Lanmans, as relators, sought a writ of mandamus
compelling the board to declare the incorporation of the vil-
lage of Johnson Lake pursuant to their petition. 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 minis-
terial 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, and
(3) there is no other plain and adequate remedy available in the
ordinary course of law.13 In a mandamus action, the relator has
the burden of proof and must show clearly and conclusively
that such party is entitled to the particular remedy sought and
that the respondent is legally obligated to act.14
11 In re Interest of Destiny S., 263 Neb. 255, 639 N.W.2d 400 (2002). See
§ 25-330 (Reissue 1995).
12 Ruzicka v. Ruzicka, supra note 8.
13 State ex rel. Johnson v. Gale, 273 Neb. 889, 734 N.W.2d 290 (2007);
State ex rel. Upper Republican NRD v. District Judges, 273 Neb. 148, 728
N.W.2d 275 (2007).
14 State ex rel. Stivrins v. Flowers, 273 Neb. 336, 729 N.W.2d 311 (2007).
StAte ex ReL. LANMAN v. boARD oF Cty. CoMMISSIoNeRS 	497
Cite as 277 Neb. 492

Whether the board had a legal obligation to act in this case
must be determined from the language of § 17-201, which pro-
vides in relevant part:
Whenever a majority of the taxable inhabitants of any
town or village, not incorporated under any laws of this
state, shall present a petition to the county board of the
county in which the petitioners reside, praying that they
may be incorporated as a village and designating the
name they wish to assume and the metes and bounds of
the proposed village, and such county board or majority
of the members thereof shall be satisfied that a majority
of the taxable inhabitants of the proposed village have
signed such petition and that inhabitants to the number
of one hundred or more are actual residents of the terri-
tory described in the petition, the board shall declare the
proposed village incorporated, enter the order of incor-
poration upon its records, and designate the metes and
bounds thereof. thereafter the village shall be governed
by the provisions of law applicable to the government
of villages.
(emphasis supplied.) Assuming without deciding that the peti-
tion bore the requisite number of signatures, we focus on
the question of whether the petitioners were “inhabitants of
any town or village, not incorporated under any laws of
this state.”
[8] We look first to the literal meaning of the statutory
language, because in the absence of ambiguity, courts must
give effect to statutes as they are written.15 If the language of
a statute is clear, the words of such statute are the end of any
judicial inquiry regarding its meaning.16 Read literally, the lan-
guage of § 17-201 would prohibit the incorporation of a village
within any existing public corporation. each Nebraska county
is characterized by statute as “a body politic and corporate.”17
15 See, Goodyear Tire & Rubber Co. v. State, 275 Neb. 594, 748 N.W.2d 42
(2008); Chase 3000, Inc. v. Nebraska Pub. Serv. Comm., 273 Neb. 133,
728 N.W.2d 560 (2007).
16 Id.
17 Neb. Rev. Stat. § 23-101 (Reissue 2007).
498 	277 NebRASkA RepoRtS

A county is a political subdivision of the state which is “corpo-
rate in character.”18 thus, under a literal reading of § 17-201,
because a county itself is a corporate entity, none of its inhabi-
tants could ever incorporate any area within its boundaries as
a village. but this literal reading of the statute would lead to
an absurd result, which we are bound to avoid if possible.19
We therefore conclude that § 17-201 is ambiguous and open
to construction.
[9] Where statutory construction is called for, a court
looks to the statute’s purpose and then construes the statute
in a reasonable manner that will best achieve that purpose,
rather than interpreting the statute in a way that would defeat
its purpose.20 Section 17-201 presupposes the existence of a
“village” in the ordinary and popular sense of the term, mean-
ing a small urban community consisting of an assemblage of
residences and having a density of population greater than
usually found in rural areas.21 the statute provides a means by
which inhabitants of such a community may “incorporate” as
a “village” in the narrower legal sense of the term in order to
avail themselves of the provisions of § 17-201 and the other
laws applicable to villages.22 However, the statutory means to
incorporate a village is limited by the phrase “not incorporated
under any laws of this state.”23 We understand this phrase
as referring to the territory situated within the boundaries
of the proposed village, and we reject the Lanmans’ argu-
ment that the phrase refers to the petitioning inhabitants. We
have previously interpreted the statute as requiring that “the
18 Speer v. Kratzenstein, 143 Neb. 310, 313, 12 N.W.2d 360, 362 (1943).
19 See, Livengood v. Nebraska State Patrol Ret. Sys., 273 Neb. 247, 729
N.W.2d 55 (2007); City of Elkhorn v. City of Omaha, 272 Neb. 867, 725
N.W.2d 792 (2007).
20 In re Application of City of North Platte, 257 Neb. 551, 599 N.W.2d 218
(1999).
21 State ex rel. Little v. Board of County Commissioners, 182 Neb. 419,
155 N.W.2d 351 (1967). See State v. Dimond, 44 Neb. 154, 62 N.W. 498
(1895).
22 See Neb. Rev. Stat. § 17-201.01 et seq. (Reissue 2007).
23 § 17-201.
StAte ex ReL. LANMAN v. boARD oF Cty. CoMMISSIoNeRS 	499
Cite as 277 Neb. 492

area is a town or village, not incorporated under the laws of
this state.”24
the verb “incorporate” means “[t]o form a legal corpora-
tion . . . .”25 thus, we read the term “incorporated” as used in
§ 17-201 to mean the formation of a public corporate entity
comprising previously unincorporated territory. the disposi-
tive issue is the scope of the next phrase, “under any laws
of this state.” the Lanmans argue that the phrase should be
read narrowly to mean simply that taxable inhabitants of an
unincorporated village may petition to incorporate as a vil-
lage under § 17-201. the board, the commissioners, and
SID No. 1 argue that the phrase is more expansive and pro-
hibits the incorporation of a village within the boundaries
of any public or municipal corporation formed pursuant to
Nebraska statutes.
[10] Had the Legislature intended only that inhabitants of
villages which had not been previously incorporated under
§ 17-201 could utilize the statute to incorporate, it could have
said so simply and directly. Indeed, it would have been unnec-
essary to include any limiting language, as there would be no
reason for inhabitants of an already incorporated village to peti-
tion for incorporation. A court must attempt to give effect to all
parts of a statute, and if it can be avoided, no word, clause, or
sentence will be rejected as superfluous or meaningless.26 by
using the broad language “under any laws of this state,” the
Legislature clearly intended that incorporation as a village was
not permissible if the area of the proposed village had previ-
ously been incorporated under any Nebraska statute.
Sanitary and improvement districts are formed pursuant to
§ 31-727 et seq. the statutes provided that “[n]o lands included
within any municipal corporation shall be included in any
sanitary and improvement district”27 and that upon formation,
24 State ex rel. Little v. Board of County Commissioners, supra note 21, 182
Neb. at 422, 155 N.W.2d at 353 (emphasis supplied).
25 black’s Law Dictionary 781 (8th ed. 2004).
26 Niemoller v. City of Papillion, supra note 6; Zach v. Nebraska State Patrol,
273 Neb. 1, 727 N.W.2d 206 (2007).
27 § 31-730. Accord § 31-761(3).
500 	277 NebRASkA RepoRtS

a sanitary and improvement district is declared by a court to
be “a public corporation of this state”28 and exists as a “body
corporate and politic”29 having
the power and authority to take and hold real and per-
sonal property necessary for its use, to make contracts,
to sue and be sued, to have and use a corporate seal, and
to exercise any and all other powers, as a corporation,
necessary to carry out the purposes of sections 31-727
to 31-762.30
based upon these statutes, this court has noted that a sanitary
and improvement district “cannot be considered unincorpo-
rated.”31 We have also held that sanitary and improvement dis-
tricts are municipal corporations within the meaning of statutes
pertaining to payment of warrants.32 We therefore conclude that
a sanitary and improvement district is a public corporate entity
within the boundaries of which a village may not be incor-
porated pursuant to § 17-201. Accordingly, the board had no
legal obligation to declare the existence of the proposed village
of Johnson Lake, and the Lanmans were not entitled to a writ
of mandamus.
remaiNiNG aSSiGNmeNtS of error
based upon our resolution of this question of law, we con-
clude that the district court did not err in entering summary
judgment in favor of the board, the commissioners, and SID
No. 1. We do not reach the Lanmans’ remaining assignments of
error because an appellate court is not obligated to engage in
an analysis which is not needed to adjudicate the controversy
before it.33
28 § 31-730.
29 § 31-732.
30 Id.
31 State ex. rel. Scherer v. Madison Cty. Comrs., 247 Neb. 384, 389, 527
N.W.2d 615, 619 (1995).
32 S.I.D. No. 272 v. Marquardt, 233 Neb. 39, 443 N.W.2d 877 (1989); In re
Application of S.I.D. No. 65, 219 Neb. 647, 365 N.W.2d 456 (1985).
33 Cass Cty. Bank v. Dana Partnership, 275 Neb. 933, 750 N.W.2d 701
(2008).
StAte ex ReL. LANMAN v. boARD oF Cty. CoMMISSIoNeRS 	501
Cite as 277 Neb. 492

CoNCLUSIoN
For the reasons discussed, we find no reversible error and
affirm the judgment of the district court.
affirmed.
G errard, J., participating on briefs.
State of NebraSka , appellee , v.
william C. floyd, Jr ., appellaNt.
763 N.W.2d 91
Filed April 3, 2009. 	No. S-08-018.
1. Rules of Evidence. In proceedings where the Nebraska evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska evidence Rules; judicial
discretion is involved only when the rules make such discretion a factor in deter-
mining admissibility.
2. Rules of Evidence: Appeal and Error. Where the Nebraska evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, the
admissibility of evidence is reviewed for an abuse of discretion.
3. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion
of the trial court to determine relevancy and admissibility of evidence of other
wrongs or acts under Neb. evid. R. 403 and 404(2), Neb. Rev. Stat. §§ 27-403
and 27-404(2) (Reissue 2008), and the trial court’s decision will not be reversed
absent an abuse of discretion.
4. Trial: Juries: Appeal and Error. the retention or rejection of a venireperson as
a juror is a matter of discretion with the trial court and is subject to reversal only
when clearly wrong.
5. Motions for Mistrial: Appeal and Error. the decision whether to grant a
motion for mistrial is within the discretion of the trial court and will not be dis-
turbed on appeal in the absence of an abuse of discretion.
6. Evidence: Words and Phrases. Clear and convincing evidence is that amount of
evidence which produces in the trier of fact a firm belief or conviction about the
existence of a fact to be proved.
7. Rules of Evidence: Appeal and Error. Findings of fact made by a district court
pursuant to Neb. evid. R. 404(3), Neb. Rev. Stat. § 27-404(3) (Reissue 2008), are
reviewed by an appellate court for clear error.
8. Rules of Evidence: Other Acts: Appeal and Error. An appellate court’s analy-
sis under Neb. evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2008), con-
siders whether the (1) evidence was relevant for some purpose other than to prove
the character of a person to show that he or she acted in conformity therewith;
(2) probative value of the evidence is substantially outweighed by its potential for
unfair prejudice; and (3) trial court, if requested, instructed the jury to consider
the evidence only for the limited purpose for which it was admitted.
502 	277 NebRASkA RepoRtS