McElhinney v. City of Superior

• Decision Date: 15 September 1891
• Parties: J. M. MCELHINNEY, APPELLEE, v. CITY OF SUPERIOR ET AL., APPELLANTS
• Court: Nebraska Supreme Court

49 N.W. 705

32 Neb. 744

J. M. MCELHINNEY, APPELLEE, v. CITY OF SUPERIOR ET AL., APPELLANTS

Supreme Court of Nebraska

September 15, 1891

APPEAL from the district court for Nuckolls county. Heard below before MORRIS, J.

AFFIRMED.

W. F Buck, and J. M. Ragan, for appellants, cited: Hull v Baird, 35 N.W. 612 [Ia.], and cases; State ex rel Fuller, v. Martin, 27 Neb. 441.

Tibbets, Morey & Ferris, contra, cited: As to the power to incur expenditure: 1 Dillon, Mun. Corp., sec. 292, and cases; Cook Co. v. McCrea, 93 Ill. 236; Ottawa v. Carey, 108 U.S. 110; Kelly v. Milan, 21 F. 842 [Tenn.]; Ravenna v. Pa. Co., 45 Ohio St. 118; Belle v. Platteville, 71 Wis. 139; Richmond v. McGirr, 78 Ind. 192; Henke v. McCord, 55 Iowa 378; Williams v. Davidson, 43 Tex. 33; McCann v. Otoe Co., 9 Neb. 324; Stewart v. Otoe Co., 2 Neb. 183; R. Co. v. Washington Co., 3 Neb. 30; Somerville v. Dickerman, 127 Mass. 272; Francis v. Troy, 74 N.Y. 338; Fulton v. Lincoln, 9 Neb. 358; Hurford v. Omaha, 4 Neb. 350; Blair v. Lantry, 21 Neb. 247; Boone, Corp., secs. 288, 295; Latham v. Richards, 12 Hun [N.Y.] 360. Councilman interested in contracts: Grand Island Gas Co. v. West, 28 Neb. 852; Boone, Corp., sec. 310; Judevine v. Harwick, 49 Vt. 180; San Diego v. R. Co., 44 Cal. 106; Manley v. Atchison, 9 Kan. 358; Oconto Co. Sup. v. Hall, 47 Wis. 208; Pickett v. Sch. Dist., 25 Wis. 551; Coles v. Williamsburgh, 10 Wend. [N.Y.] 659; Case v. Johnson, 91 Ind. 477; Gardner v. Ogden, 22 N.Y. 332.

OPINION

NORVAL, J.

In November, 1889, the council of the city of Superior passed an ordinance known as "Ordinance No. 120," by which the city gave to Robert Guthrie permission and authority to construct and operate an electric light plant and power in the city of Superior, and for that purpose authorized him to use the streets, avenues, alleys, and public grounds of the city for erecting poles, wires, and other appliances. This franchise was to continue for the period of thirty years.

Subsequently, and on the 24th day of November, 1889, the city council passed an ordinance known as "Ordinance No. 121," by which the city contracted with the said Robert Guthrie to pay him $ 924 per year, for the period of three years, for eleven electric are lights to be furnished, maintained, and operated by him at such points in the city as the council should designate.

This suit was brought by the appellee McElhinney, a resident and taxpayer of the city, against the city council and Robert Guthrie, to enjoin said Robert Guthrie from constructing said electric light plant, or doing any work under the franchise granted by said ordinance No. 120, and to enjoin him from furnishing for the use of the city any electric lights, and the city council from paying therefor. A temporary injunction was granted, which, on the final hearing in the district court, was made perpetual.

It is urged that the contract to furnish electric lights is void because no appropriation had been made for the expenditure proposed.

The testimony shows that on the 26th day of July, 1889, the annual appropriation ordinance for the city of Superior for the fiscal year 1889 was passed, which appropriated various sums for specified objects and purposes, but appropriated no money for lighting the city.

Section 86 of article 1, chapter 14, of the Compiled Statutes provides that "The city council and board of trustees in villages shall, within the first quarter of each fiscal year, pass an ordinance, to be termed the annual appropriation bill, in which such corporate authorities may appropriate such sum or sums of money as may be deemed necessary to defray all necessary expenses and liabilities of such corporation, not exceeding in the aggregate the amount of tax authorized to be levied during that year; and in such ordinance shall specify the objects and purposes for which such appropriations are made, and the amount appropriated for each object or purpose. No further appropriation shall be made at any other time within such fiscal year unless the proposition to make such appropriation has been first sanctioned by a majority of the legal voters of such city or village, either by a petition signed by them or at a general or special election duly called therefor, and all appropriations shall end with the fiscal year for which they were made."

Section 87 of said chapter provides that "Before such annual appropriation bill shall be passed the council or trustees shall prepare an estimate of the probable amount of money necessary for all purposes to be raised in said city or village during the fiscal year for which the appropriation is to be made, * * * itemizing and classifying the different objects and branches of expenditures, as near as may be, with a statement of the entire revenue of the city or village for the previous fiscal year, and shall enter the same at large upon its minutes, and cause the same to be published four weeks in some newspaper published or of general circulation in the city or village."

Section 88 provides "that the mayor and council, or board of trustees, shall have no power to appropriate, issue, or draw any order or warrant on the treasury for money unless the same has been appropriated by ordinance or the claim, for the payment of which such order or warrant is issued, has been allowed according to the provisions of this chapter, and appropriations for the class or object out of which such claim is payable has been made as provided in section 86. Neither the city council, nor the board of trustees, nor any department or officer of the corporation shall add to the corporation expenditures in any one year anything over and above the amount provided for in the annual appropriation bill for that year, except as herein otherwise specifically provided; and no expenditure for any improvement, to be paid for out of the general fund of the corporation, shall exceed in any one year the amount provided for such an improvement in the annual appropriation bill," etc.

Section 89 provides "that no contract shall hereafter be made by the city council or board of trustees, or any committee or member thereof; and no expense shall be incurred by any of the officers or department of the corporation, whether the object of the expenditure shall have been ordered by the city council or board of trustees or not, unless an appropriation shall have been previously made concerning such expense, except as herein otherwise expressly provided."

These sections were construed by this court in City of Blair v Lantry, 21 Neb. 247, 31 N.W. 790. We quote from the opinion: "It will be seen that no contract can be made by the city council or any committee or member thereof, or any expense incurred by any of the officers or departments of the corporation, whether such expense shall...