Getchell v. Benton
| Decision Date | 22 December 1890 |
| Parties | GETCHELL v. BENTON ET AL. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
A beet sugar manufactory which does not manufacture sugar from beets for toll, although propelled by water-power, is not within legislative control by virtue of any law of this state, and is therefore held not a work of “internal improvement,” within the meaning of the constitution or statute.B. B. Willey and Talbot & Bryan, for plaintiff.
William Leese, Atty. Gen., H. C. Brome, and N. D. Jackson, for defendants.
This cause was submitted upon an agreed statement of facts, of which the following is the substance: First. The plaintiff is, and for more than one year last past has been, a citizen, a resident freeholder, and tax-payer of the city of Neligh, in the county of Antelope. Second. The city of Neligh, at all the dates hereinafter mentioned, has been, and now is, a city of the second class, with more than 1,000 and less than 5,000 inhabitants, duly incorporated, organized, and existing under, and by virtue of, the laws of this state. Third. That on the 20th day of May, 1890, said city of Neligh submitted the question of the issuing of the bonds of said city to the amount of $14,800 to a vote of the legal voters of said city, in the manner provided by law. Fourth. More than two-thirds of the votes cast at said election being in favor of said proposition, said city council did, subsequent to said election, cause said proposition, and the vote at said election, to be entered upon the records of said city, and a notice of the adoption of said proposition to be published in a newspaper of said city, and thereafter, and on the 1st day of June, 1890, the authorities of said city, in the manner provided by law, issued said bonds. Fifth. Said bonds have been delivered, by the corporate authorities of said city, to the defendant, the auditor of public accounts of this state, for the purpose of registration, and said defendant will, unless enjoined therefrom by the order of the court, register said bonds. Sixth. Plaintiff claims (1) that the purpose for which said bonds were issued, as shown by the proposition and notice of election, is not to aid the work of “internal improvement” within the meaning of the laws of this state; (2) that the corporate authorities of the city of Neligh have no authority, under the law, to issue bonds in aid of a work of internal improvement, to be located outside of the corporate limits of the said city. Seventh. The above claims of plaintiff, as set out in the sixth paragraph of the stipulation, are denied by defendants, and the questions thus presented are the only matters in controversy between the parties, it being agreed that all the requirements of law with respect to the voting of bonds to aid works of internal improvement in the cities of this state have been complied with. Upon the submission of the case, the respective parties, by their counsel, filed exhaustive briefs on each side, which were carefully examined and considered, at our consultation, and we were all of the opinion that the bonds could not be sustained. The authority of statute relied upon to justify the issuance of the bonds is found in an act passed by the legislature of 1869, and which now constitutes section 1 of chapter 45 of the current compilation of the statutes. This section provides that “any county or city of the state of Nebraska is hereby authorized to issue bonds to aid in the construction of any railroad or other work of internal improvement, to an amount to be determined by the county commissioners of such county, or the city council of such city, not exceeding ten per centum of the assessed valuation of all taxable property in said county or city: provided, the county commissioners or city council shall first submit the question of the issuing of such bonds to a vote of the legal voters of said county or city, in the manner provided by chapter nine of the Revised Statutes of Nebraska, for submitting to the people of a county the question of borrowing money.” Chapter 57 of the Compiled Statutes has also an important bearing upon the question involved. Section 1 of this chapter provides that “if any person desiring to erect a dam across any water-course for the purpose of building a water, grist, saw, carding, or fulling mill, or of erecting any machinery to be propelled by water, be the owner of the lands on which he desires to build such mill, or erect such machinery, on one side of such water-course, and not of the land on the opposite side against or upon which he would abut his dam; or if any person be the owner of the lands on which he desires to erect any such mill or machinery on both sides of such water course; or if any person shall have erected such mill and mill-dam on his own lands,--he may file a petition for leave to build or continue such mill-dam, and a writ of ad quod damnum in the district court of the county where such lands lie, against the owners or proprietors of the lands above and below such dam which are, or probably will be, overflowed or injured thereby, or against or upon which he may desire to abut his dam.” The succeeding 25 sections are devoted to matters of procedure and detail. Section 27 provides that “all mills within this state now in operation, or which hereafter may be put in operation, for grinding wheat, rye,...
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