Linn v. City of Omaha

• Decision Date: 03 May 1906
• Docket Number: 14,616
• Citation: 107 N.W. 983,76 Neb. 552
• Parties: ISABEL LINN, APPELLANT, v. CITY OF OMAHA ET AL., APPELLEES
• Court: Nebraska Supreme Court

107 N.W. 983

76 Neb. 552

ISABEL LINN, APPELLANT, v. CITY OF OMAHA ET AL., APPELLEES

No. 14,616

Supreme Court of Nebraska

May 3, 1906

APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Affirmed.

AFFIRMED.

A. G Ellick, for appellant.

John P Breen and W. H. Herdman, contra.

EPPERSON, C. AMES and OLDHAM, CC., concur.

OPINION

EPPERSON, C.

This is an action for injunction instituted by the plaintiff, who is a resident and taxpayer of the city of Omaha, to annul ordinance No. 5,613 of said city providing for a special bond election, and to declare void an election held in pursuance thereto, and to restrain the defendants as officers of the city of Omaha from executing or negotiating certain bonds of that city. A demurrer was filed to the petition and sustained by the trial court. Plaintiff, not desiring to plead further, a judgment of dismissal was entered, from which the plaintiff appealed.

The facts alleged in the petition, and necessary for our consideration, are as follows: On September 27, 1905, the city council of Omaha passed an ordinance providing for submitting to the electors of said city at a special election the following proposition: "Shall the bonds of the city of Omaha in the sum of $ 60,000 be issued for the purpose of paying the cost of constructing fire-engine houses for the use of the fire department of the city of Omaha, such fire-engine houses to be in the locality and at the estimated and approximate cost as follows: North 50 feet of lot 13, block 1, Armstrong's first addition, estimated cost $ 30,000. For the purchase of a site and the erection of a fire-engine house thereon in the district lying north of Willis avenue, west of the east line of Sherman avenue and east of the west line of Twenty-fourth street, estimated cost $ 30,000." Said ordinance authorized and directed the mayor to issue his proclamation calling said special city election, and directed that said proclamation be issued at least 20 days prior to said election, and provided that, if voting machines be used at said election, the city clerk should prepare the statement of the question submitted to be inserted on the ballot label. The mayor issued his proclamation, and the proposition for such election was published as required by law. On November 7, 1905, said special election was held, at which voting machines were used instead of ballots. Upon the ballot label there was set forth the following words and figures: "Shall the city issue $ 60,000 fire-engine house bonds to run 20 years at 4%?" On the Thursday evening following, the city council met for the purpose of canvassing votes cast at the said election, and at the meeting the president appointed two persons to assist the city clerk in canvassing the returns. These two persons took an oath of office before the city clerk to faithfully and impartially perform their duties as canvassers, and thereupon they and the city clerk proceeded to canvass the vote. At the session of the city council on the following day, the clerk and the persons thus appointed to assist him made a report in writing to the city council that they had tabulated the vote, and found that upon said proposition there were 3,416 votes "Yes," and 1,468 "No." Upon receiving such report, the president of the city council declared the proposition voted upon, stating the same at length, duly carried. Upon motion, and the vote of the city council, the declaration of the president was approved. On November 21, 1905, the city council duly passed an ordinance authorizing and directing the issuance of said bonds. Thereafter the bonds were offered for sale by the city of Omaha, and were sold to J. L. Brandeis & Son, and at the time this suit was instituted the defendants were preparing to execute, issue and deliver said bonds to the purchaser.

1. The plaintiff contends that the city of Omaha under its present charter has no power to submit such a question to the electors at a special election. Subdivision 28, section 144 of the city charter (Comp. St. ch. 12a, 1905), authorizes and empowers the city to establish fire-engine houses. Subdivision 29 of said section provides that the city may establish any useful or necessary building upon any land purchased for such purpose. Section 195 of the charter provides as follows: "The mayor and council are hereby authorized and empowered to issue bonds of the city with interest coupons annexed in such amounts and for such length of time as they may deem proper * * * for the construction or purchase of a city hall, auditorium, or other needful buildings for the use of the city." Section 197 provides: "No bonds * * * shall be issued until the electors of said city shall have authorized the same by a two-thirds vote of the electors of such city, voting on said proposition, at a general or special election of said city held after ten days' notice, published in the official paper of the city stating the maximum amount proposed to be issued and stating distinctly the purpose for which they are to be issued." Reading the several sections above cited together, it clearly appears that the city has the authority to construct or purchase useful buildings, and under the petition in this case we are required to assume that the proposed engine houses are necessary and useful. It also appears that the city officers have the power to issue bonds to raise funds for such purpose. We find no provision in the charter providing the manner for calling the special elections authorized by section 197; but as the power was expressly conferred by the legislature, which failed to establish the manner of its exercise, the city was required to prescribe by ordinance the manner of exercising these powers. Such was done in this case by the passage of ordinance No. 5,613 set forth in the petition. Authority therefor is given by section 143 of the charter which provides: "When by this act the power is conferred upon the mayor and council to do and perform any act or thing, and the manner of exercising such powers is not specially pointed out, the mayor and council may provide by ordinance the details necessary for the full exercise of such power."

2. Plaintiff contends, further, that the city of Omaha has no power to issue bonds for the purpose of purchasing a site for an engine house; and cites in support thereof Witter v Board of Supervisors, 112 Iowa 380, 391, 83 N.W. 1,041, in which the supreme court of Iowa held that under the statute of that state, authorizing counties to borrow money for the erection of public...