COMMUNICATION WORKERS OF AMERICAN, AFL-CIO, APPELLEE
V.
CITY
OF HASTINGS, NEBRASKA, A MUNICIPAL CORPORATION, ET AL, APPELLANTS
198
Neb. 668, 254 N.W.2d 695
Filed
June 15, 1977. No. 41041.
1. Statutes. Where general and
special provisions of statutes are in conflict, the general law yields to the
special, without regard to priority of dates in enacting the same, and a special
law will not be repealed by general provisions unless by express words or
necessary implication.
2. Statutes: Jurisdiction: Court of
Industrial Relations: Process. Section
48-813, R.S. Supp., 1976, is the controlling stature in regard to service of
process in cases where the jurisdiction of the Court of Industrial Relations is
invoked.
3. Words and Phrases.
Words and phrases shall be construed and understood according to the
common and approved usage of the language.
4. Public Officers and Employees: Attorneys at law: Words and Phrases: Statutes. A city attorney is not a “principal officer” within the meaning of that phrase as used in section 48-813, R.S. Supp., 1976.
Appeal from the Nebraska Court of Industrial Relations. Reversed.
Nelson, Harding,
Marchetti, Leonard & Tate, Arthur T. Carter, and William A. Harding, for
appellants.
John P. Fahey, for appellee.
Heard before
White, C. J., SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ.
BRODKEY,
J.
This
is an appeal from a determination by the Court of Industrial Relations
establishing a collective bargaining unit for employees of the City of Hastings,
and certifying the Communications Workers of America, AFL-CIO, as exclusive
bargaining agent of that unit after an election. We reverse the decision of the
Court of Industrial Relations on the ground that it had no jurisdiction over the
City of Hastings because of improper service of process.
The City of
Hastings, respondent and appellant herein, raises numerous assignments of error
in regard to the proceedings which took place in the Court of Industrial
Relations. In light of our disposition of the case, however, we need only
consider its contention that it was not properly served with process in this
case.
In February,
1975, Communications Workers of America, AFL-CIO, petitioner and appellee
herein, filed a representation petition in the Court of Industrial Relations. In
addition to members of the court, the petition and notice of filing the
petition, were served only on Mr. Albert P. Madgett, the city attorney of the
City of
Section 16-115,
R. R. 5.1943, provides: "The corporate name of each city of the first
class shall be the City of _____, and all process whatever affecting any such
city shall be served upon the mayor or acting mayor, or in the absence of both
of said officers from the city, then upon the city clerk." Section 48-813,
R. S. Supp., 1976 provides:
“Whenever the jurisdiction of the Court of Industrial Relations is invoked,
notice of the pendency of the proceedings shall be given in such manner as the
court shall provide for serving a copy of the petition and notice of filing upon
the adverse party. An employer or labor organization may be served by sending a
copy of the petition filed to institute the proceedings and a notice of filing,
which shall show the filing date, by any form of mail requiring a signed
receipt, addressed to a principal officer at the usual place of activity of the
employer or labor organization***. The
giving of such notice in such manner shall subject the employers, the labor
organizations, and the persons therein to the jurisdiction of the Court of
Industrial Relations.”
The
City of Hastings contends that Section 16-115, R. R. S. 1943, is applicable in
this case because it is a city of the first class. The petitioner contends that
section 48-813, R. S. Supp., 1976, controls, and that its service of process was
adequate under that section. The City of Hastings objected to the service in its
answer and preserved this objection for appeal. See Rule 6 of the Court of
Industrial Relations. The Court of
Industrial Relations found that the service was adequate under section 48-813,
R. S. Supp., 1976, on the ground that service upon the city attorney of the City
of Hastings met the requirement that service be made upon a principal officer
of the employer.
Both parties rely
on the well-established rule that where general and special provisions of
statutes are in conflict, the general law yields to the special, without regard
to priority of dates in enacting the same, and a special law will not be
repealed by general provisions unless by express words or necessary
implication. See, Kibbon v. School
Dist. of Omaha, 196 Neb. 293, 242 N. W. 2d 634 (1976); Houser v. School Dist. of
South Sioux City, 189 Neb. 323, 202 N. W. 2d 621 (1972); Duerfeldt v.
State, 184
Neb. 242, 166 N. W. 2d 737 (1969). Applying the rule to this case, it is
apparent that section 48-813, R. S. Supp., 1976, sets forth special and specific
provisions for service of process in cases where the jurisdiction of the Court
of Industrial Relations is invoked. Section 16-115, R. R. S. 1943, although it
refers specifically to persons upon whom process shall be served in cases
generally, must yield to the provisions of section 48-813, R. S. Supp., 1976, in
cases where the jurisdiction of the Court of Industrial Relations is invoked.
Therefore we hold that section 48-813, R. S. Supp., 1976, is controlling in
this case.
Although we agree
with petitioner in that section 48-813, R. S. Supp., 1976, controls, we disagree
that the service in this case complied with that section. Section 48-813, R. S.
supp., 1976, provides that notice of the pendency of the proceedings shall be
given in such manner as the court shall provide; and then further provides that
an employer may be served by sending a copy of the petition to a principal
officer of the employer. The record in this case does not reflect that the Court
of Industrial Relations provided a manner for providing notice of the pendency
of the proceedings. The court, however, found that service upon the city
attorney was adequate because he is a “principal officer” of the City of
Hastings. We disagree with that conclusion.
Pursuant to
section 16-308, R. R. S. 1943, a city attorney is an appointive officer, and
such an officer may be removed at any time by the mayor with approval of a
majority of the city council. Section 16-319, R. R. S. 1943, provides that the
"city attorney shall be the legal advisor of the council and city officers."
Although the city attorney is an officer under the statutory scheme, he or she
is not a "principal officer." "Principal," when used as an
adjective,means chief, leading, primary, original; and also, highest in rank,
authority, character, importance, or degree. Black's Law Dictionary, p.1355
(4th Ed., 1951); Webster's Third New International Dictionary, p.1802 (1968).
Our statute
provides that words and phrases shall be construed and understood according to
the common and approved usage of the language** *.', § 49-802(5), R. R. 5.
1943. When our Legislature used the
words "principal officer" it did not mean every officer. It meant what it said - "principal"
officer, with the word "principal" qualifying the word
"officer" as an adjective. Under the statutory scheme, a city attorney
is essentially the legal advisor to the city council and city officers. The
city attorney serves at the pleasure of the mayor and the city council. He or
she has no statutory power to make governmental decisions which affect the city.
Therefore, the city attorney is not a chief, primary, or main officer, and is
not a "principal" officer.
There is no
dispute in this case that no city officer other than the city attorney was
served with process. For the reasons given above, such service was not adequate
under section 48-813, R. S. Supp., 1976; nor for that matter, under section
16-115, R. R. S. 1943; and therefore the City of
REVERSED.
BOSLAUGH, J., not participating.