Bryan v. City of Lincoln

• Decision Date: 16 February 1897
• Citation: 70 N.W. 252,50 Neb. 620
• Parties: BRYAN ET AL. v. CITY OF LINCOLN ET AL.
• Court: Nebraska Supreme Court

50 Neb. 620

70 N.W. 252

BRYAN ET AL.

v.CITY OF LINCOLN ET AL.

Supreme Court of Nebraska.

Feb. 16, 1897.

Syllabus by the Court.

1. The clause “When the same shall have been authorized by a vote of the people,” contained in subdivision 21, § 67, art. 1, c. 13a, Comp. St. 1895, under heading “Cities of the First Class,” means “authorized by a majority of the voters of the city.”

2. A proposition to authorize the issuance of funding bonds was submitted to the electors of a city pursuant to the provisions of such section of the statutes at the same time and place as the general city election. Held, under the facts shown, to be but one election; that the presumption is that all the electors voted at such election, and the proposition to work its adoption must have received a majority of all the votes cast at such election.

Appeal from district court, Lancaster county; Holmes, Judge.

Action by William J. Bryan and O. N. Humphery against Elmer B. Stephenson, the city of Lincoln, and others. Judgment for plaintiffs, and defendant Stephenson appeals. Affirmed.Lambertson & Hall, for appellant.

Boehmer & Rummons and A. S. Tibbets, for appellees.

HARRISON, J.

The appellees herein, in their character as residents and taxpayers of the city of Lincoln, instituted this action in the district court of Lancaster county, to restrain or enjoin the execution and delivery by the city, the mayor and city council thereof, of certain funding bonds in the aggregate sum of $534,500, to Elmer E. Stephenson, the alleged purchaser of such bonds. Pleadings were filed and issues joined, of which there was a trial, which resulted in a judgment by which the execution and delivery of the bonds were perpetually enjoined. Elmer B. Stephenson, of defendants in the trial court, has appealed to this court.

The proposition of the issuance of the bonds was submitted to a vote of the people, and of the questions at issue in the district court was the one: Did the bond proposition receive the requisite number of votes to effect its adoption? That it did not was asserted by appellees, and is urged in the briefs filed in this court; and, on oral argument, counsel for appellees especially directed attention to this branch of the case. The proposition of the issuance was, pursuant to the provisions of the law, submitted to a vote of the electors of the city. Subdivision 21, § 67, art. 1, c. 13a, p. 208, Comp. St. 1895, in which is embodied the grant of power to the officers of a municipality of the class to which the city of Lincoln belonged to issue funding bonds, reads as follows: “To provide for issuing bonds for the purpose of funding any and all indebtedness now existing or hereafter created of the city, now due or to become due, when the same shall have been authorized by a vote of the people: provided that the mayor and council shall not fund any bonded debt at a higher rate. Such bonds shall be redeemable after ten years at the option of the city.” The phrase “when the same shall have been authorized by a vote of the people” is the portion of the section with which we have here more particularly to deal. “Authorized by the vote,” in this connection, can but mean by a majority, as there are but two answers to be made to the question submitted,--an affirmative and a negative; and, to be authorized, the matter of the proposition must receive the greater number or majority of the votes. It could not be a plurality, as might be when there are more than two candidates for office, and the one receiving the highest number of votes is elected, but may not have received a majority of the votes. The word “people,” as used here, must mean “electors” or “voters.” It can have no other signification, and the section in which it occurs has intelligible, reasonable, and sensible force. It was stated in an act that towns and cities might submit a proposition to the vote of the “inhabitants.” The word “inhabitants” was held to mean “voters.” 6 Am. & Eng. Enc. Law, p. 445; Walnut v. Wade, 103 U. S. 693. The phrase under consideration in the case at bar must necessarily be held, from the act and connection in which it appears, to refer to the vote of the people of the city of the class to which the act is applicable. A fair reading, then, of the phrase, would be authorized by a majority of the vote of the electors or voters of the city. It appears that an ordinance was passed by the city council in which provision was made for the submission of the proposition of the issuance of the funding bonds to a vote of the electors of the city; and we will here digress to say that the council probably indicated its construction of the law with reference to the vote necessary to carry the subject of the submission in the ordinance, as did also the mayor in the notice or proclamation published of the election, for it was stated in each that, if the majority of the votes cast at the election were favorable to the proposition, the mayor and council should have power to issue the bonds. But, returning again to the question proper, it appeared that, though in some portions of the ordinance the election therein provided was denominated a “special election,” it was fixed to be held on Tuesday, the 3d day of April, 1894, which was the day of the general election for city officers, and the vote on the bond proposition was to be presided over by the same judges and clerks of election as the vote on officers at the general city election. The vote was taken at the same polling places in the city; the same registration lists were used; the same voting booths. Indeed, no measures were used which would mark the vote on the bond proposition as a separate election, except separate ballot boxes were used, and probably separate poll lists. This last does not very clearly appear from an inspection of the evidence. This constituted but the one election when considered for the purpose of determining how many persons presented themselves, and participated as voters in an election at that time and place. State v. Bechel, 22 Neb. 158, 34 N. W. 342.

The next question which presents itself for consideration and adjudication is whether, under the provision we have quoted in regard to an election on the proposition to issue funding bonds held at the same time and place as the general election of the officers of the city, and practically as a part of that election, to affirmatively indorse the proposition required but a majority of the votes cast for or against it, or did it require a majority of the votes cast at the election? No inherent right or power existed in the city to issue these or any other bonds. To exist, it must be conferred by statute. State v. Babcock, 21 Neb. 187, 31 N. W. 682. If issued, they created a debt which is, in effect, a lien upon the taxable property of the citizens of the municipality. Fullerton v. School Dist., 41 Neb. 601, 59 N. W. 896. It is but right and just that the provisions of the law regulating the procedure in the preliminaries or precedent conditions to be fulfilled in the authorization of their issuance should be the subjects of fairly strict construction, and, if a doubt arises or is entertained in any particular, it should be resolved in the interest or regularity and fullness of compliance with such requirements. An application of this rule in the present instance leads us to the conclusion that, to work the adoption of the proposition submitted, it was necessary that a majority of all the votes cast at the election be favorable to it, and not only a majority of the ballots cast for or against the proposition. It required, as we have seen, by giving to the portion of the section of the statute in reference to the vote its evident ordinary and plain import, a majority of the votes of the electors of the city to authorize the proper officers to issue bonds; and it is but fair and reasonable to take the highest number of voters voting at the election on the selection of a person to fill any office for the filling of which the election was being held, or for or against any proposition regularly submitted and voted upon, as constituting the body of the electors of the city. The registration lists would not furnish a perfect total of the number, as the body of the voters necessarily changes with the passing of the days, some who have registered probably moving away from the city, and new ones coming in, who are unregistered, and there would also be the many others who do not register; and probably as fair a test of the number of the electors of the city, for the purpose for which it is desired in the determination of the question now under consideration, is to fix it at the highest number who voted on the selection of any one officer or matter on which an expression of the voters was taken at the then election. It must be presumed that the framers of the section of the statute by virtue of which this matter of the bond issue was submitted had it in contemplation that all the electors would vote (as, indeed, if possible, they all should), and that a majority of those voting should settle the question. Slingerland v. Norton (Minn.) 61 N. W. 322. To adopt any other construction would cast it within the realm of doubt and uncertainty, and involve inquiries whether there were electors who, for any reason, had not appeared at the polls, and voted; would, in fact, lead to divers, many, and endless questions, invite contests in elections, and,...