State ex rel. Douglas County v. Cornell

• Decision Date: 02 February 1898
• Docket Number: 9812
• Citation: 74 N.W. 59,53 Neb. 556
• Parties: STATE OF NEBRASKA, EX REL. DOUGLAS COUNTY, v. JOHN F. CORNELL, AUDITOR OF PUBLIC ACCOUNTS
• Court: Nebraska Supreme Court

74 N.W. 59

53 Neb. 556

STATE OF NEBRASKA, EX REL. DOUGLAS COUNTY, v. JOHN F. CORNELL, AUDITOR OF PUBLIC ACCOUNTS

No. 9812

Supreme Court of Nebraska

February 2, 1898

ORIGINAL application for a writ of mandamus to compel the auditor of public accounts to register bonds issued by relator for the purpose of raising funds for an exhibit at the Trans-Mississippi and International Exposition. Writ allowed.

WRIT ALLOWED.

Howard H. Baldrige, H. L. Day, and Montgomery & Hall, for relator.

C. J Smyth, Attorney General, and Ed P. Smith, Deputy Attorney General, contra.

OPINION

NORVAL, J.

This was an original application to this court for a peremptory writ of mandamus, on the relation of Douglas county, to compel the respondent, as auditor of public accounts, to register in his office 100 certain coupon bonds of said county, aggregating $ 100,000, voted for the purpose of raising money to enable it to participate in the Trans-Mississippi and International Exposition to be held in the city of Omaha during the year 1898. In 1897 the legislature of this state passed an act entitled "An act to authorize counties to participate in interstate expositions, to issue bonds for such purpose, and to provide for a tax for the payment of such bonds." (Session Laws 1897, p. 192, ch. 24.) The first three sections of said law are here reproduced:

"Section 1. Whenever one thousand (1,000) voters of any county in the state of Nebraska having over one hundred thousand population shall petition the board of county commissioners or the board of supervisors to that end, any such county shall be and hereby is authorized to issue the bonds of such county, to become due twenty (20) years from the date thereof, and to bear interest at the rate not to exceed five (5) per cent per annum, to provide for the expenses of promoting the interest of such county by participating in any interstate exposition held in the state of Nebraska and making at such exposition a county exhibit, improving or beautifying the grounds, and erecting or aiding in the erection of a suitable building or buildings therefor, and maintaining the same during such exposition, to an amount to be determined by the board of county commissioners or board of supervisors, not exceeding one hundred thousand dollars ($ 100,000) Provided, The board of county commissioners or board of supervisors shall first submit the question of the issuing of such bonds to a vote of the legal voters of such county at a general or special election, such question to be submitted entire after notice to such voters published in any newspaper of general circulation in such county for four (4) weeks next prior to such election; and Provided, That such interstate exposition shall first have been recognized by the congress of the United States by an appropriation of a sum not less than one hundred thousand dollars ($ 100,000).

"Sec 2. The proposition when submitted shall contain a statement of the amount necessary to be raised each year for the payment of the interest of said bonds and for the payment of the principal thereof at maturity.

"Sec. 3. If two-thirds (2/3) of the votes cast on such proposition at any such election be in favor thereof, the said bonds shall be authorized and the proper officers of the county shall thereupon issue said bonds and the same shall be and continue a subsisting debt against such county until they are paid."

Section 4 of said act provides for the levying of a sufficient tax by the proper county officers upon all of the taxable property of the county to pay the principal and interest upon said bonds as the same become due and payable.

The relation shows that the proposition to issue the bonds in question was submitted to the electors of the county, and the same was adopted by them in strict conformity to the provisions of the said legislative enactment. The respondent has declined to register the bonds for the reason their legality is questioned; but he has not, by answer or otherwise, advised the court of the particular grounds upon which their validity is assailed, nor has he submitted any authorities in opposition to the issuance of the writ. Counsel for relator, in the briefs and at the bar, have argued two propositions, to which attention will be given, namely: First--Whether the bonds were voted for a lawful object or purpose. Second--Did the proposition to issue them receive the requisite affirmative vote of the electors of the county?

The following principles are too well established by the authorities to require discussion at this time:

First--The legislature may authorize taxation for a public purpose, but a tax imposed for an object in its nature essentially private is void. (1 Dillon, Municipal Corporations sec. 508; Cooley, Taxation [2d ed.] 55, 103; 25 Am. & Eng. Ency. Law 87, and the numerous cases cited in note 2 on said page.)

Second--It is for the legislature in the first instance to decide whether the object for which a tax is to be used or raised is a public purpose, but its determination of the question is not conclusive. (Supra.)

Third--To justify a court in declaring a tax invalid on the ground that it was not imposed for the benefit of the public, the absence of a public interest in the purpose for which the money is raised by taxation must be so clear and palpable as to be immediately perceptible to every mind. (Turner v. Althaus, 6 Neb. 54; Board of Directors of Alfalfa Irrigation District v. Collins, 46 Neb. 411, 64 N.W. 1086; Brodhead v. City of Milwaukee, 19 Wis. 624; Sharpless v. Mayor of Philadelphia, 21 Pa. 147; People v. Common Council of East Saginaw, 33 Mich. 164; Walker v. City of Cincinnati, 21 Ohio St. 14; Stockton & V. R. Co. v. City of Stockton, 41 Cal. 147; Weismer v. Village of Douglas, 64 N.Y. 91; Loan Association v. Topeka, 87 U.S. 655, 20 Wall. [U. S.] 655, 22 L.Ed. 455.)

In the last case it was said: "It is undoubtedly the duty of the legislature which imposes or authorizes municipalities to impose a tax to see that it is not to be used for purposes of private interest instead of public use, and the courts can only be justified in interposing when the violation of this principle is clear and the reason for interference cogent. And in deciding whether in a given case the object for which the taxes are assessed falls upon the one side or the other of this line, they must be governed mainly by the course and usage of the government, the objects for which taxes have been customarily and by long course of legislation levied, what objects or purposes have been considered necessary to the support and for the proper use of the government, whether state or municipal. Whatever lawfully pertains to this and is sanctioned by time and the acquiescence of the people may well be held to belong to the public use, and proper for the maintenance of good government, though this may not be the only criterion of rightful taxation."

The language of Folger, J., in his opinion in Weismer v. Village of Douglas, 64 N.Y. 91, deserves to be reproduced here: "It is a general rule that the legitimate object of raising money by taxation is for public purposes and the proper needs of government, general and local, state and municipal. When we come to ask, in any case, what is a public purpose, the answer is not always ready, nor easily to be found. It is to be conceded that no pinched or meager sense may be put upon the words, and that if the purpose designated by the legislature lies so near the border line that it may be doubtful on which side of it it is to be domiciled, the courts may not set their judgment against that of the lawmakers."

In Board of Directors of Alfalfa Irrigation District v. Collins, 46 Neb. 411, 64 N.W. 1086, occurs this language: "While all agree that the legislature cannot, without the consent of the owner, appropriate private property to purposes which in no way subserve public interests, the rule is quite as firmly settled that the courts will not interfere by declaring acts invalid simply because they may differ with the lawmaking power respecting the wisdom or necessity thereof. For if, by any reasonable construction, a designated use may be held to be public in a constitutional sense, the will of the legislature should prevail over any mere doubt of the court."

In the light of the principles already stated, is the legislation, under which the bonds in question were voted, illegal on the ground that it authorized the imposing of burdens upon the public, by way of taxation, in aid of a private enterprise, and not in furtherance of an object which is public in its character? The answer must be in the negative. The statute under review does not attempt, or purport, to authorize the issuance, or donation, of the bonds to private individuals, or the corporation under whose auspices the exposition is to be held. Nor does the act contemplate that the money derived from the sale of the bonds shall be devoted to promote the interest of a few; but the intention of the law was to enable any county availing itself of its provisions to raise the means with which to meet the expenses of erecting a suitable building or buildings, and maintaining the same, and an exhibit of the resources of the county at the Trans-Mississippi and International Exposition to be held in the city of Omaha in 1898. The proceeds of the bonds are to be disbursed, for the purpose mentioned in the law, by Douglas county, through its officers and agents. We cannot determine judicially that such an object is purely private, and not public in its character, especially in view of the legislation and adjudication in this state now to be mentioned. The legislature in 1891 appropriated $ 50,000 "to provide for a presentation of the products, resources, and...