Drummond v. City of Columbus, 30507.

• Court: Supreme Court of Nebraska
• Writing for the Court: PAINE
• Citation: 136 Neb. 87,285 N.W. 109
• Parties: DRUMMOND v. CITY OF COLUMBUS ET AL. (HENGGELER ET AL., INTERVENERS).
• Docket Number: No. 30507.,30507.
• Decision Date: 27 June 1939

136 Neb. 87
285 N.W. 109

DRUMMOND
v.
CITY OF COLUMBUS ET AL. (HENGGELER ET AL., INTERVENERS).

No. 30507.

Supreme Court of Nebraska.

April 3, 1939.
Rehearing Denied June 27, 1939.
See 286 N.W. 779.

[285 N.W. 110]

Syllabus by the Court.

1. The symbol, or phrase, “and/or”, leads to uncertainty, ambiguity, and multiplicity, and is not to be recommended.

2. The use of the symbol, “and/or,” upon the ballot confused the voters who were unable to determine definitely the effect of their votes at this special election.

3. A ballot for a special election upon public utilities should clearly state the substance of the proposition submitted. If it is stated in garbled, equivocal terms, the purpose of the election is vitiated in advance.

4. The voters at an election on public utilities are entitled to definite information which will enable them to consider, weigh, discuss, and vote upon the actual merits of the proposition. If unfounded facts are set out which obscure the issues, or mislead the voters on material questions of fact, the election will be held to be null and void.

Appeal from District Court, Platte County; Spear, Judge.

Action by Fred Drummond, a resident taxpayer of the city of Columbus, against the City of Columbus and others to enjoin the City of Columbus from issuing bonds, wherein William H. Henggeler, intervener, and the Northwestern Public Service Company, intervener, filed cross-petitions. From a judgment in favor of the City of Columbus, the interveners appeal.

Judgment reversed.

Lowell L. Walker, of Columbus, for Henggeler.

Walter, Flory & Schmid, of Columbus, for Northwestern Public Service Co.

Emil F. Luckey, of Columbus, for Drummond.

C. J. Garlow and Charles H. Sheldon, both of Columbus, and Perry, Van Pelt & Marti, of Lincoln, for City of Columbus.

Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE, CARTER, and MESSMORE, JJ., and POLK, District Judge.

PAINE, Justice.

Fred Drummond, a resident taxpayer of the city of Columbus, brought an action to enjoin the city from issuing $250,000 of bonds under the revenue bond act. The trial court held there was no equity in the petition of plaintiff, nor in the cross-petitions of two interveners, and dismissed the action. Intervener Northwestern Public Service Company has appealed, and intervener William H. Henggeler has prosecuted a cross-appeal.

Plaintiff's petition against the city, its mayor, and the members of the city council alleged that Columbus was a city of the first class, and that on July 22, 1936, a petition for a special election was filed with the city clerk, signed by 1,198 electors, and that the city council passed a resolution calling a special election for the submission to the voters this question:

“Shall the city of Columbus, Nebraska, construct, purchase, or otherwise acquire an electric light and power distribution system, and/or transmission lines, and real and personal property needed or useful in connection therewith and pay the costs thereof by pledging and hypothecating the revenue and earnings of such distribution system and/or transmission lines to be owned by such city; and in the exercise of the authority granted by law, issue and sell revenue bonds or debentures in an amount not exceeding Two Hundred Fifty Thousand Dollars (250,000.00), for the purpose herein stated, and enter into such contracts in connection therewith as may be proper and necessary.

? YES

? NO”.

On August 20, 1936, the special election was held, and the canvassing board reported that a total of 1,205 votes were cast for the issuance of such revenue bonds, and that 1,154 votes were cast against the issuance of such bonds, making the majority in favor of their issuance 51 votes.

[285 N.W. 111]

It is further alleged that the petition to the city council was irregular in form, and signatures were illegally secured, that it was insufficient, indefinite, confusing, ambiguous, and drawn in such a manner as to leave to the determination of the city council whether a distribution system should be constructed, purchased, or otherwise acquired, and gave no authority for calling said election; that no estimate of the cost of the construction of an electric light and power plant distribution system “and/or” transmission lines was filed prior to the holding of the special election, as provided by law, and that said special election was not called or held as provided by law.

Said petition also attacks the constitutionality of said law, and charges that Senate File No. 25 (Laws 1935, ch. 38), also known as section 18-1601, Comp.St.Supp.1935, is incomplete, unconstitutional, and void.

It is also alleged that the city threatens to issue such revenue bonds, and will unless restrained, and to let contracts for the construction of an electrical distribution system in said city, and incur substantial expense for engineering and preliminary expenses, all to the irreparable damage and injury of the plaintiff and other taxpayers of the city of Columbus, for which reasons the plaintiff prays that the election may be declared null and void; that Senate File No. 25 be declared unconstitutional; that the city be enjoined from issuing or selling said revenue bonds for the purpose mentioned, or entering into any contracts for the purchase, construction, or acquiring of a distribution system.

The city of Columbus in its answer admits in brief that plaintiff is a resident taxpayer and consumer of electricity, and admits that the plaintiff prosecutes the action in behalf of himself and of others similarly situated; admits that Columbus is a city of the first class; admits that a petition was presented to the city on July 22, 1936, signed by 1,198 qualified electors, and that said number is more than 20 per cent. of the votes cast at the last general city election; admits that the council passed a resolution calling for a special election, which was duly held; alleges that Senate File No. 25, which is set out at length in the answer, is a valid act, in full force and effect, and that all proceedings done in connection with Senate File No. 25 are regular and legal; admits that no estimate of costs of the construction of said distribution system was made by the city prior to the special election; denies that there is no available supply of electrical energy for the use of the city; denies that the plaintiff and other taxpayers will suffer irreparable damage and injury, and prays that plaintiff's cause of action be dismissed.

On June 1, 1937, the Northwestern Public Service Company filed its petition of intervention as allowed by the court. Said petition of intervention is too long to be abstracted herein, but alleges in effect that said corporation was operating its electric generating plant and distribution system pursuant to a franchise duly approved by the voters of the city of Columbus, which became effective February 2, 1917, for a term of 15 years, which franchise provided that if said corporation should extend its transmission lines to other municipalities in the trade territory of Columbus, thereby making such plant a central plant, then such franchise should ipso facto extend itself for an additional period of 10 years, and that, in keeping with the spirit of the franchise, the company had extended its transmission lines to other municipalities and rural residents, and thereby said franchise did by its terms extend to February 2, 1942; that its transmission lines reach all parts of the city of Columbus and rural districts and small towns in adjacent territory; that it has constantly lowered its rates and improved its service, and that such considerable investments have been made by such corporation in reliance upon the applicable statutes of the state of Nebraska, and upon the Constitution of the state of Nebraska, and upon the Constitution of the United States, in the assurance that said corporation would at all times be protected against unlawful competition, unlawful acts, contracts, or competition not duly authorized by the laws of the state of Nebraska, which might destroy or render useless the property and rights of the intervener corporation. Intervener further alleges that it has invested in excess of $1,250,000 in the Columbus division, of which...