Brooks v. MaClean

• Decision Date: 07 January 1914
• Docket Number: 17,289
• Parties: WILLIAM A. BROOKS, APPELLANT, v. HUGH MACLEAN ET AL., APPELLEES
• Court: Nebraska Supreme Court

144 N.W. 1067

95 Neb. 16

WILLIAM A. BROOKS, APPELLANT, v. HUGH MACLEAN ET AL., APPELLEES

No. 17,289

Supreme Court of Nebraska

January 7, 1914

APPEAL from the district court for Dawson county: BRUNO O HOSTETLER, JUDGE. Reversed with directions.

REVERSED.

H. M Sinclair and W. D. Oldham, for appellant.

W. A Stewart, John H. Linderman, John J. Halligan and T. M. Hewitt, contra.

LETTON, J. HAMER, J., concurring in part.

OPINION

LETTON, J.

This action was brought by the plaintiff, for himself and in behalf of all other taxpayers similarly situated, for the purpose of enjoining the issuance and delivery of certain precinct bonds voted by Riverside precinct of Dawson county to aid in building a bridge across the Platte river. The defendants are the board of county commissioners of Dawson county and the Riverside Bridge Company, the proposed donee of the bonds. The principal reasons given in the petition to show that the bonds were illegal are: (1) Illegality in the formation of the precinct; (2) that the petition for the calling of an election was not signed by 50 freeholders; (3) that the proposed donation was in aid of a private enterprise; that the donee is a private corporation with a capital stock of $ 250; that there is no road either private or public that leads to or from the proposed bridge, nor is there a road or bridge across the river at that point; that the land along the stream, as well as the bed, belongs to private owners; that the donee has no power to take land by eminent domain; that the bridge, when constructed, would be inaccessible to the public, and the property of the plaintiff will be taken to pay the bonds without due process of law; (4) that a proposition to levy annually "a tax equal to the entire interest charge on the said bonds and equal to 10 per cent. of the principal of the same for a sinking fund, until all of said bonds are paid," is invalid upon its face.

The answer is substantially a general denial. The district court found generally for the defendants, and dismissed the action. Plaintiff appeals.

The first point argued for a reversal is that the order of the county board organizing Riverside precinct is void for the reason that the petition presented to the county board for that purpose did not contain a majority of the legal voters. In his application for injunction plaintiff sets out a petition containing only 37 names, but the answer denies that this is a correct copy of the petition presented to the county board, and there is testimony that a similar petition containing 51 additional names was also filed with the county board.

Plaintiff insists that the order forming Riverside precinct is void for the further reason that it was made at a special meeting, which the record of the county board recites was called by the county clerk, and that this meeting was illegal because the county clerk had no authority to call it, because there is no record of the calling of the meeting, and because the county board had no authority to create a precinct for the purpose of voting bonds.

The county clerk has authority to call a special session when the interest of the public demands. Comp. St. 1911, ch. 18, art. I, sec. 57. The call was made and the meeting held pursuant thereto. The meeting itself is proved by a proper record, and the presumption is that it was properly called. The failure of the clerk to make a record of the call did not invalidate it. Green & Van Duyn v. Lancaster County, 61 Neb. 473, 483, 85 N.W. 439.

The statute provides that each board of county commissioners shall divide the county into convenient precincts, and, as the occasion may require, erect new ones, subdivide the precincts, or establish better precinct lines. Comp. St. ch. 18, art. I, sec. 60. This is sufficient to confer the authority upon the county board. The facts with respect to the creation of this precinct are not parallel to those involved in the case of Morton v. Carlin, 51 Neb. 202, 70 N.W. 966; hence, it furnishes no authority against the validity of the organization of the precinct.

The point argued that the board was not legally constituted, since it was composed of three members, one of whom signed the petition, is not well taken. The joint action of two qualified members of the board was sufficient. State v. Piper, 17 Neb. 614, 24 N.W. 204. We conclude, therefore, that the attack upon the organization of the precinct made in the petition has not been sustained.

Coming now to the validity of the election: The discussion of this subject assumes several phases. In the first place it is contended that the petition for the election did not contain the names of 50 freeholders, as required by the statute. Sixty names are affixed thereto. It is claimed that four of the signers of the petition were made freeholders for the purpose of signing the petition; but we are satisfied that the finding of the district court to the contrary is sustained by the evidence. It was also contended that a number of nonresident owners of land in the precinct signed the petition, and that if such names are deducted there would not be the names of a sufficient number of resident freeholders signed to the petition to authorize the calling of an election. The right to petition the county board to call an election to vote on a proposition to issue precinct bonds does not depend upon the elective franchise. The statute does not say that the petitioners shall be "resident freeholders" or electors. The requirement is that a "petition signed by not less than fifty freeholders of the precinct" shall be presented to the county commissioners. Comp. St. 1911, ch. 45, sec. 14. To show that the word "freeholders" means "resident freeholders" plaintiff cites State v. Babcock, 21 Neb. 187, 31 N.W. 682; Wullenwaber v. Dunigan, 30 Neb. 877, 47 N.W. 420; Morton v. Carlin, 51 Neb. 202, 70 N.W. 966. In the first of those cases the term "resident freeholders" is neither used in the statute construed, nor in the opinion of the court. In the second case it was distinctly stated that the question relating to "freeholders" was not necessary to a decision. The words "resident freeholders" do not appear in the opinion, nor in the statute construed, and evidently crept into the syllabus through inadvertence. In the third case cited, this syllabus inadvertently containing the word "resident," is copied in the opinion. Petitioners for a license to sell intoxicating liquors must be "resident freeholders." Comp. St. 1911, ch. 50, sec. 1. There is no provision of statute, however, requiring petitioners for an election to vote bonds to be "resident freeholders." The terms "freeholders" and "resident freeholders" in the different statutes are not synonymous, and cannot be so construed. Nonresident and alien freeholders of the precinct may petition the county board to call an election to vote bonds. Rix v. Johnson, 5 N.H. 520; Matthews v. People, 159 Ill. 399, 42 N.E. 864. In this view of the law the petition assailed is sufficient.

The objections that the bonds were not voted and will not be delivered for a public purpose are more serious. The pleading of the specific defects in the proceedings and as to the character of the donee is by no means a model in form, but the court in a matter of public concern will be liberal in its construction of pleadings in the interest of the proper conduct of public business and the protection of the taxpayer.

The same rule will be applied with reference to the briefs and arguments; and, as section 675c of the code provides, the court may consider a plain error not assigned.

The petition to the county commissioners to call the election specified "that the work for which bonds are desired to aid is the construction and operation of a wagon bridge across the Platte river in said county, extending form section 5 on the north bank to section 8 on the south bank, both in town. 10 north, of range 24 west of the 6th P. M." It failed to set forth whether the bridge was to be built by the county, by the precinct, or by a private corporation, whether it should be a free bridge upon a public highway, or whether it should be a toll bridge owned by a private corporation. At the special election the board submitted the questions whether bonds should be issued and a tax levied "to aid in the construction and completing of a wagon bridge across the Platte river, extending from section 5 on the north bank of said river to section 8 on the south bank of said river," etc., and, also, "shall said bonds be delivered to the Riverside Bridge Company, a corporation, upon giving sufficient security, to aid in the construction of said bridge, upon the execution thereof by the board of county commissioners of Dawson county, Nebraska, * * * and shall said bonds be delivered to the said bridge company on its giving bond, to be approved by the board of county commissioners, to apply the proceeds thereof to the construction of said bridge." There is no condition in the bonds, or in the proposition to vote bonds, requiring the bridge to be maintained by the corporation. There is no provision that the bridge shall be a public one, whether toll or free. A proposition to vote bonds is in the nature of a contract which, when accepted, is binding with respect to the parties. Wullenwaber v. Dunigan, supra; Nash v. Baker, 37 Neb. 713, 56 N.W. 376. No proposition had been filed with the county board by the Riverside Bridge Company at the time the election was called, and no such proposition is shown to have been on file when the election was held, or has since been put on file.

Section 3 of the articles of incorporation of the Riverside Bridge Company is as follows: "That the capital stock of said company shall be the sum of $ 250 to which shall...