Cook v. City of Beatrice

• Decision Date: 06 May 1891
• Citation: 48 N.W. 828,32 Neb. 80
• Parties: COOK v. CITY OF BEATRICE ET AL.
• Court: Nebraska Supreme Court

32 Neb. 80

48 N.W. 828

COOK

v.CITY OF BEATRICE ET AL.

Supreme Court of Nebraska.

May 6, 1891.

Syllabus by the Court.

1. In an action to enjoin the issuing of certain bonds of a city to be donated to a railway company upon completion of its road, it appeared that the whole question had not been submitted to the electors of the city, and that no vote had been submitted or adopted for the payment of the principal at any time. Held, that the injunction granted by the court below would be affirmed.

2. A much stronger case is required to enjoin the collection of taxes levied for the payment of interest or principal of bonds issued in pursuance of apparent authority, and which have been duly registered and passed into the hands of bona fide purchasers, than to prevent the issuing of such bonds upon specified grounds, which might invalidate them.

3. In this state every reasonable opportunity is offered to tax-payers to protect their rights by enjoining the issuing or registration of illegal bonds, and, unless there is a want of power to issue the same, bonds duly issued and registered will not be declared invalid for mere irregularity in the exercise of the power to issue such bonds.

Appeal from district court, Gage county; BROADY, Judge.Hazlett & Bates and S. S. Brown, for appellants.

Griggs & Rinaker, for appellee.

MAXWELL, J.

This action was brought by the plaintiff, a tax-payer of the city of Beatrice, and others, to enjoin the defendants from delivering to the Chicago, Kansas & Nebraska Railroad Company $50,000 bonds of said city. The reasons for said injunction are set forth in the petition as follows: “That the said defendant the C., K. & N. R. R. Co. was not on the 20th day of July, 1886, is not now, and never has been, incorporated under the laws of the state of Nebraska, nor has said C., K. & N. R. R. Co. ever at any time been entitled to do business in said state. That on the 1st day of April, 1886, the said C., K. & N. R. Co. filed in the office of the secretary of state articles of its incorporation, under the laws of the state of Nebraska, a true copy of said articles being hereto annexed, marked ‘A,’ and made a part of this petition. That the said C., K. & N. R. R Co. has never at any time filed for record in the office of the county clerk of said Gage county any articles of its incorporation whatever; and that the said articles so filed in the office of the said secretary of state are the only articles anywhere filed in the state of Nebraska by said railroad company. That upon the 16th day of June, 1886, the said mayor and councilmen attempted and pretended to pass, sign, and approve an ordinance, a true copy of which is hereto annexed, marked ‘B,’ and made part of this pleading. That the same was not a valid ordinance at the time of the giving of the notice mentioned in the next paragaph of this pleading, said ordinance at said time not having been published as required by law and the rules and regulations governing the passage of ordinances in said city, and the same not providing for the payment of the principal of the proposed bonds as required by the laws of the state of Nebraska. That on the 18th and 25th days of June and the 2d and 9th days of July of the year 1886, and upon no other days, the defendants, not including the defendant Railroad Co., published and caused to be published in the Beatrice Democrat a notice, a true copy of which is hereto annexed, marked ‘C,’ and made part of this pleading; the said notice being first published as aforesaid on the said 18th day of June, 1886, and prior to the publication and taking effect of the ordinance above mentioned, the said ordinance being first published at the same time and in the same paper as the said first publication of the said notice. That upon the 3d day of July, 1886, and more than two weeks prior to the date named in said notice as the date for the holding of the election for the said bonds mentioned in the said notice, the defendant the C., K. & N. R. R. Co., through its authorized and responsible agent, filed for record in the county clerk's office of said Gage county a plat of the survey of the road of said company, showing the exact line of route of the said proposed railroad through the said Gage Co., and through the said city of Beatrice, and precincts included within said city. That upon the 20th day of Dec., 1886, the defendant the C., K. & N. R. R. Co. sold and conveyed, as fully as by law it was authorized to do, all of its road, rights, powers, privileges, immunities, and franchises in the state of Nebraska to the C., K. & N. Ry. Co., a corporation organized and doing business under the laws of the state of Kansas, as will appear by the exhibits hereto annexed, marked ‘D,’ and ‘E,’ and made a part hereof. That, at the time of the making of the conveyance mentioned in the last paragraph, the said C., K. & N. R. R. Co. had not constructed any line of railroad through said Gage Co., nor in or to the said city of Beatrice, nor had said company complied with the terms and conditions of said proposition on its part to be performed. That the said C., K. & N. R. Co. was not on the 20th day of Dec., 1886, is not now, and never has been, incorporated under the laws of the state of Nebraska, and entitled to do business within the said state. That on the 23d day of December, 1886, the said C., K. & N. Ry. Co. filed in the office of the secretary of state of the state of Nebraska a copy of its articles of incorporation in the state of Kansas, a true copy of said copy of said Kansas articles of incorporation, so filed, being hereto attached, marked ‘D,’ and made a part of this pleading. That said C., K. & N. Ry. Co. has filed no other articles of incorporation anywhere in the state of Nebraska, at any time, save said copy of its Kansas articles of incorporation, filed as aforesaid. That on the 20th day of December, 1886, the said C., K. & N. R. R. Co. ceased to exist, and became extinct, and is not now, nor has it been since said date, a corporation of the state of Nebraska, nor has it at any time since said date constructed any line of railroad, or portion thereof, through said Gage county, or in or to the said city of Beatrice, or elsewhere. That after the said 20th day of July, 1886, the day upon which the special election mentioned in said notice was held, the said C., K. & N. Ry. Co. constructed a line of road through said Gage Co., and the said city of Beatrice, and precincts included therein, but upon a line of route different from that indicated by the said survey and plat, and at a distance of more than 80 rods from the line of route as marked upon the said survey and plat filed as aforesaid in said county prior to the said date of said election. That the said C., K. & N. Ry. Co. and the said C., K. & N. R. R. Co. have not, either severally or jointly, complied with the terms of said proposition, nor has any line of railroad, at any time, ever been constructed through Gage county, and in and to said city of Beatrice, which does not deviate in its course more than 80 rods from the line of...