State ex rel. Bd. of Educ. v. Benton

Citation45 N.W. 794,29 Neb. 460
PartiesSTATE EX REL. BOARD OF EDUCATION v. BENTON, AUDITOR.
Decision Date06 May 1890
CourtSupreme Court of Nebraska

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. The board of education of the city of O. submitted, at a regular city election, a proposition to issue bonds under the provisions of the act entitled “An act relative to public schools in metropolitan cities,” approved March 31, 1887, at which election there were cast for the office of mayor 12,337 votes; for the proposition to issue school bonds, 4,930, and against the proposition, 2,992, votes. Bonds issued in pursuance of the proposition and authority were presented to the auditor of the state for registration, and upon rejection, and application for mandamus to the officer, held, that the issuance of bonds was not sanctioned by the vote given.

2. Where a proposition to issue bonds is submitted by the board of education under the provisions of the act of March 31, 1887, held, that it was unnecessary that it be accompanied by a provision to levy a tax to pay the interest on such bonds.

3. Under the provisions of the act of February 7, 1871, authorizing the board of regents of the high school on Capitol square of the city of Omaha to issue bonds, and of the acts amendatory and supplemental thereto, held, that the board of education of the school-district of Omaha, under the authority and sanction of the electors, in accordance with the statute, may expend the public money, from the sale of school bonds or otherwise, in the erection of school buildings on said square.

Mandamus.

Lee S. Estelle and Wm. E. Healey, for relator.

Wm. Leese, Atty. Gen., for respondent.

COBB, C. J.

The school-district of the city of Omaha, as relator, in the name of the state, applied for a peremptory writ of mandamus against the auditor of public accounts, compelling him to accept the statement and register the bonds of the relator, issued for public uses, in the amount of $215,000, under the laws of this state. The relator represents that the city of Omaha, on March 16, 1889, was a duly incorporated metropolitan city of 80,000 inhabitants, constituting one school-district. That since November 1, 1889, it has had a board of education of 15 members, duly elected and qualified as such. That at a regular meeting of the board, November 11, 1889, there were present 10 members, taking part in all matters acted upon, and by their affirmative vote consented and ordered that a proposition be submitted to a vote of the electors of the city for authority to issue bonds in the sum of $215,000, 215 in number, of the denomination of $1,000 each, dated January 1, 1890, to bear interest at 5 per cent. per annum, payable semi-annually, the principal to become due in 20 years from date, and payable, with the interest, at the Nebraska fiscal agency in New York city, the proceeds of said bonds to be used for the purchase of school-sites and the erection of school buildings to be used for school purposes in said school-district; designating the locality of the sites, the amount of money required, and the cost of the school buildings. That the proposition be submitted at the time and places of holding the next city election thereafter, notice thereof to be given 10 days before the election, in one or more daily newspapers published within the city. That said notice was so published, and said proclamation was so issued, and said election was held in the manner and form prescribed by law, and the returns thereof made by the regular election board of said city, and canvassed by said board of education. That the majority of the ballots polled at the election were in favor of the proposition, and were returned and canvassed in the manner, and within the time prescribed by law, showing that the proposition was duly carried and adopted by the city. In pursuance of which the board of education prepared said bonds, which, on the face of each, expressed the fact that they were issued under the provisions of subdivision 17, c. 79, Comp. St. Neb. 1889; were signed by the president and secretary of the board, specifying the rate of interest, the time and place of payment of both principal and interest. Each bond was for the sum of $1,000. That subsequently, before this application, the relator submitted to the auditor of public accounts a written statement of the proceedings had, and set forth, with a full statement of the assessed valuation of, and the number of children of school age residing in, said district, and the total bonded indebtedness thereof, which statement was certified under oath by the members of said board of education; and therewith submitted the bonds, so prepared, and requested the auditor to record the statement, and register the bonds, which he refused, and still refuses, to do. That said statement showed that the aggregate school-tax of said district did not exceed 2 per cent. uponall taxable property of the district in the years 1888 or 1889 or 1890. The relator, therefore, prays that the auditor be compelled to record the statement, and register the bonds in his office, and that a peremptory writ of mandamus be issued to carry the order of the court, to that end, into effect.

Attached to the information of the relator was the statement submitted to the auditor, and a stipulation by the relator, and by the attorney general on the part of the respondent: (1) The history of the bonds as presented to the auditor, is to be attached to the relator's petition as a part thereof. (2) The title to the site on which the high-school building is situate, and for which the $75,000 contained in the proposition is to be used in the erection of an addition thereto, is in the city of Omaha, and not in the school-district, but that the title is so held by the city in trust for the use of the school-district. (3) The polling places at the election to vote the bonds were located at the city polling places, and not at the school-houses in the wards of the city. (4) The judges and clerks appointed by the mayor for the city election were the same that acted on the bond proposition. (5) There were polled for mayor, 12,337; for treasurer, 12,318; for police judge, 12,288; for comptroller, 12,395. And the following on the bond proposition: For the bonds, 4,930, and against the bonds, 2,992, votes. The relator agrees to produce the pollbooks used by the judges and clerks of election on the bond proposition. That the levy of taxes in the aggregate, not including the interest on the bonds in controversy, is ______ mills, and no more, for the year 1890. LEE S. ESTELLE, Atty. for Relator. WM. LEESE, Attorney General.”

The attorney general, for the respondent, demurred to the petition for the reason that it does not set up facts sufficient for a cause of action entitling the relator to a writ of mandamus. In support of this pleading, he argues in his brief: (1) That under section 25, subd. 17, c. 79, Comp. St. 1889, a vote of the district is only necessary to authorize an expenditure for school sites and buildings greater than $25,000, to be reported to the city council, who are required to make the levy, to be collected as other taxes, without authority to issue bonds. (2) That the authority to issue bonds, under section 28 of the same law, is under proclamation of the board of education of the district, for the submission of the proposition to the qualified voters, at school meetings, at a regular election, or at an election called for that purpose. That the regular election of this statute is held yearly on the first Monday of June, and the places of election are at the school-houses of the wards of the city, as nearly as may be at the center of each ward. This is the only regular election of a school-district in metropolitan cities, and is that referred to in section 28. (3) That the majority of all the ballots polled at such an election, “or at any regular election,” is necessary to authorize the issuance of bonds. That the total vote polled for the office of mayor was 12,337, and the total for the school proposition submitted, 4,930, and 2,992 in the negative, lacking 1,239 votes of the required majority. There was but a single set of judges and clerks appointed for the election, and therefore but one election held. (4) While the law provides that no stone or brick school-house shall be built on any site without first obtaining the title in fee, it is admitted that the title to the site of the high-school building, sought to be improved, at a cost of $75,000, in the proposition submitted, is not in the school-district, but is in the city of Omaha. (5) Section 27, c. 18, provides the mode of submitting propositions to be voted on for any authorized purpose. Section 28, c. 18, provides, if the proposition involves the issuance of bonds, there shall be provision for levying an annual tax for the payment of interest, and no adoption is valid unless it likewise embraces the amount of tax to be levied, to meet the face of the bonds and their redemption, which is not shown to have been the fact in this instance. The act relative to public schools in metropolitan cities, approved March 31, 1887, is the latest expression of the legislative will on the issuance of bonds for school purposes. It is confined to cities of the metropolitan class, and is sufficiently comprehensive to effect its purposes without resort to the general provisions of any prior act regulating the issuance of bonds by school-districts, towns, cities, counties, or other municipal corporations. It is exclusive of other acts, and provides (section 1) “that each incorporated metropolitan city shall constitute one school-district, and be known by the name of school-district, (city.) Section 4 provides “that the affairs of the school-district hereby created shall be conducted exclusively by boards of education, except as otherwise provided.” Section 5, for the holding of an annual school election on the first Monday in June of each year, that “it...

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2 cases
  • State ex rel. Saunders v. Clark
    • United States
    • Nebraska Supreme Court
    • 7 Marzo 1900
    ...Babcock, 17 Neb. 188, 22 N. W. 372;State v. Bechel, 22 Neb. 158, 34 N. W. 342;State v. Anderson, 26 Neb. 521, 42 N. W. 421;State v. Benton, 29 Neb. 460, 45 N. W. 794;Douglas Co. v. Keller, 43 Neb. 635, 62 N. W. 60;Stenberg v. State, 50 Neb. 130, 69 N. W. 849;Bryan v. City of Lincoln, 50 Neb......
  • State ex rel. Saunders v. Clark
    • United States
    • Nebraska Supreme Court
    • 7 Marzo 1900
    ...Babcock, 17 Neb. 188, 22 N.W. 372; State v. Bechel, 22 Neb. 158, 34 N.W. 342; State v. Anderson, 26 Neb. 517, 42 N.W. 421; State v. Benton, 29 Neb. 460, 45 N.W. 794; Douglas County v. Keller, 43 Neb. 635, 62 N.W. Stenberg v. State, 50 Neb. 127, 69 N.W. 849; Bryan v. City of Lincoln, 50 Neb.......

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