Bartling v. Wait

• Citation: 148 N.W. 507,96 Neb. 532
• Decision Date: 11 July 1914
• Docket Number: 18,611
• Parties: HENRY H. BARTLING, APPELLANT, v. ADDISON WAIT, SECRETARY OF STATE, APPELLEE
• Court: Supreme Court of Nebraska

148 N.W. 507

96 Neb. 532

HENRY H. BARTLING, APPELLANT, v. ADDISON WAIT, SECRETARY OF STATE, APPELLEE

No. 18,611

Supreme Court of Nebraska

July 11, 1914

APPEAL from the district court for Lancaster county: WILLARD E STEWARD, JUDGE. Affirmed.

AFFIRMED.

Paul Jessen, William H. Pitzer and Edwin Zimmerer, for appellant.

Grant G. Martin, Attorney General, George W. Ayres and A. W Richardson, contra.

LETTON J. REESE, C. J., and ROSE, J., not sitting.

OPINION

LETTON, J.

Action for an injunction, which was denied. Plaintiff appeals.

On April 16, 1913, an act was passed and approved, entitled "An act to establish a memorial armory at Nebraska City and to provide for the payment of the construction thereof." Laws 1913, ch. 128. This act provided, in substance, for the establishment in Nebraska City of an armory building to be known as the "Fort Kearney Memorial Armory" to be located on the ground originally occupied by old Fort Kearney, and that when so constructed it should be used and occupied as an armory building by that company of the regular state militia then or afterwards located at Nebraska City; that the building should be constructed under the supervision of the commissioner of public lands and buildings after the land on which it was to be built should be conveyed to the state in fee simple without cost or expense. By section 5, $ 20,000 was appropriated from the general fund of the state for the purpose named.

The petition alleges that the plaintiff is a citizen of the state and a resident of Nebraska City; that there is now in plaintiff's hands a deed conveying the fee simple title to the site of old Fort Kearney, with an abstract of the record title thereto, with instructions from the grantor to deliver the same to the state of Nebraska for the purpose contemplated by the act; that he has tendered the conveyance and abstract to the governor of the state, but acceptance has been refused for the reason that there has been filed in the office of defendant secretary of state of Nebraska a petition under the provisions of article XIX, ch. 20, Rev. St. 1913, demanding that the act be submitted to the legal voters of the state at the general election to be held in November, 1914. It is also alleged that the secretary of state, notwithstanding the insufficiency of the petition in fact and law, as defendant is preparing to submit the act to the voters of the state for approval or rejection at the next general election, and to print the title of the act and a statement of its provisions upon the ballot to be submitted to the voters. It is alleged that the defendant has no power so to do, for the reason that by section 1c, art. III of the constitution, it is provided that the referendum cannot be ordered upon acts of the legislature "making appropriations for the expenses of the state government, and state institutions existing at the time such act is passed," and that such act is within the exception; that there is and has been continually for 25 years past a regular company of the state militia enlisted and organized and having its headquarters in Nebraska City, which is a part of the national guard of the state; that the regularly organized state militia is a part of the government of the state of Nebraska, and an appropriation for its maintenance is an appropriation for the expenses of the state government; and that the national guard is a state institution which was in existence at the time of the passage of the act.

A large number of irregularities in the petitions filed are also alleged, and it is alleged that the signers do not equal 10 per cent. of the legal voters of the state at the last regular election, and that when illegal signatures are deducted there would be less than 5 per cent. of the legal voters in each of two-fifths of the counties of the state. An injunction is prayed to prevent defendant from printing the title and numbers of the act upon the ballot, and from proceeding with the submission of the question of the approval or rejection of the act. The attorney general answers, admitting the passage of the act as alleged, the facts alleged with reference to the site of old Fort Kearney, the tender of the deed to the governor and its refusal, and that the defendant intends to submit the question to the people. The other allegations in the petition are denied. After a hearing, the court found in favor of defendant and denied the injunction.

At the trial the allegations as to the continuous existence of a company of the national guard at Nebraska City, and that the names upon the petitions represented more than 10 per cent. of the votes cast for governor at the preceding election, and more than 5 per cent. in each of more than two-fifths of the counties of the state were admitted. It is also stipulated that of the 26,891 names 1,852 are signed, and their post office address is shown only by the city or village in which the signer purports to live, but neither the county nor state in which they live appears upon the face of the petition, except that which appears upon the other side of the face of the petition, and that each of the 1,852 names was subscribed to the petition under the printed form. Copies of this and of the back of the petition were in evidence.

It is first argued that the petition is insufficient because, while the statute requires a full and correct copy of the act proposed to be submitted to the vote of the people to be printed upon each petition circulated, the record shows that the word "originally" in the second section was omitted. The act provides that the building should be constructed "upon the ground originally occupied by old Fort Kearney," while the purported copy reads that the buildings shall be constructed upon the ground occupied by old Fort Kearney. The statute provides (Rev. St. 1913, sec. 2335): "The following shall be substantially the form of petition for ordering the referendum against any act or any part of any act passed by the legislature of the state of Nebraska. * * *

"PETITION FOR REFERENDUM.

"To the Honorable , Secretary of State for the state of Nebraska: We, the undersigned citizens and legal voters of the state of Nebraska and the county of , respectfully order that the Senate (or House) Bill No. entitled (title of act, and if the petition is against less than the whole act, then set forth here the part or parts on which the referendum is sought)."

The form...