17-101. City of the second class, defined; population; exception.

Each municipality containing more than eight hundred and not more than five thousand inhabitants as determined by the most recent federal decennial census or the most recent revised certified count by the United States Bureau of the Census shall be a city of the second class and be governed by sections 17-101 to 17-153 unless it adopts or retains a village form of government as provided in sections 17-306 to 17-312. The population of a city of the second class shall consist of the people residing within the territorial boundaries of such city and the residents of any territory duly and properly annexed to such city.

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A village, containing the required population, becomes a city of the second class without action being taken on its part, and the fact that at the time statutory resolution was adopted to provide for election of city officers, it had less than the requisite number of inhabitants to make it such city, is immaterial. State ex rel. Einstein v. Northup, 79 Neb. 822, 113 N.W. 540 (1907).

Quo warranto, and not bill for injunction, is appropriate remedy to test the legal existence of a city of second class where the question turns on whether the municipality contains the statutory number of inhabitants sufficient to change a village to a city of the second class. Osborn v. Village of Oakland, 49 Neb. 340, 68 N.W. 506 (1896).

Under former act, all towns and cities containing in excess of fifteen hundred and less than fifteen thousand inhabitants were created into cities of the second class without any acceptance or other act of such town, city or its inhabitants. State ex rel. Fremont, E. & M. V. R. Co. v. Babcock and Laws, 25 Neb. 709, 41 N.W. 654 (1889).

This section operates to create cities of the second class upon municipality reaching stated number of inhabitants without necessity of the acceptance thereof by municipal act. State ex rel. Hostetter v. Holden, 19 Neb. 249, 27 N.W. 120 (1886); State ex rel. Mayor of David City v. Palmer, 10 Neb. 203, 4 N.W. 965 (1880).

Though Legislature changes classification of municipality from village to city of second class, its original officers hold over until new officers are elected under amended act. State ex rel. Mayor of David City v. Palmer, 10 Neb. 203, 4 N.W. 965 (1880).