Hurd v. City of Fairbury

• Decision Date: 16 November 1910
• Docket Number: 16,876
• Citation: 128 N.W. 638,87 Neb. 745
• Parties: JOHN HURD, APPELLANT, v. CITY OF FAIRBURY ET AL., APPELLEES
• Court: Nebraska Supreme Court

128 N.W. 638

87 Neb. 745

JOHN HURD, APPELLANT, v. CITY OF FAIRBURY ET AL., APPELLEES

No. 16,876

Supreme Court of Nebraska

November 16, 1910

APPEAL from the district court for Jefferson county: LEANDER M PEMBERTON, JUDGE. Affirmed.

AFFIRMED.

C. H Denney, for appellant.

W. J Moss and F. N. Prout, contra.

REESE, C. J. LETTON, J., ROOT, J., concurring. SEDGWICK and ROSE, JJ., dissenting.

OPINION

REESE, C. J.

This action was instituted in the district court for Jefferson county for the purpose of restraining and enjoining the mayor and council of the city of Fairbury from selling certain bonds of said city issued in pursuance of elections held therein, whereby it is claimed by the city officers that the issuance of said bonds has been duly authorized by the electors. The bonds have been duly certified by the auditor of state, and are ready for sale, but some questions have arisen as to the granting of the power by the electors, and plaintiff, a citizen and taxpayer, has sought the decision of the courts as to the validity of the bonds. The petition is of great length, consisting of a carefully prepared history of the proceedings leading up to the issuance of the bonds, copying the records of the city, and averring that the authority for the action of the mayor and council was not given by the electors. The petition is in two counts and states two causes of action. An election was called to be held on the 26th day of April, 1910, "at the regular polling places in the city of Fairbury," for the purpose of voting on two propositions: One, that of issuing the bonds of the city of Fairbury in the sum of $ 20,000 "for the purpose of raising a sum sufficient to purchase or install and establish an electric light system within said city;" the other, to issue the bonds of the city in the sum of $ 115,000 "for the purpose of purchasing or erecting, constructing, locating and maintaining a system of water-works within said city." The former was adopted and carried by the requisite majority, while the latter, failing to receive the required number of votes, was defeated. Another election was called to be held on the 14th day of June, 1910, at which the second proposition was resubmitted, to wit, the issuance of bonds in the sum of $ 115,000 for the identical purpose as stated in the former submission. This election resulted in the adoption of the proposition by a sufficient vote.

The invalidity of the electric light bonds is alleged and based upon the following grounds: First, the election notice is insufficient because it did not state the polling places at which the election was to be held; second, the question submitted was "whether bonds should be issued for the purpose of raising a sum sufficient to purchase or install and establish an electric light system within said city of Fairbury," and that the statement of said question made it a dual question and rendered it impossible for the plaintiff and other electors to vote intelligently and to express their sentiments as to whether said city should purchase the old plant or should erect a new one; third, the record of said proceeding is incomplete in not including in said record the final ordinance fixing the form of the bonds. Without further noting the petition in detail, it must be sufficient to say that the objections alleged and urged against the validity of the water bonds are in substance the same as those against the electric light bonds. To each count of the petition the defendants filed a demurrer, assigning as the grounds therefor that the facts stated did not constitute a cause of action. Both demurrers were sustained, and, the plaintiff not desiring to amend his petition, the action was dismissed at his cost. He appeals.

As to the first contention, that the election notice was insufficient because it did not designate the particular places at which the election was to be held in the different wards, it must be sufficient to say that there is no averment in the petition that there were no "regular polling places in the city of Fairbury" before that time designated and established by ordinance or usage, or that there were none such at which elections had been regularly held, and it would seem that the court cannot assume, in the absence of such averment, that there were no "regular polling places in the city." There is no averment that any elector was deprived of his vote, nor that there was any uncertainty as to where the election should be held, and therefore we must presume that all the existing conditions were met by the notice. If there were regular polling places, the notice was sufficient. We cannot say there were not. Actual notice to the body of electors is sufficient. Wheat v. Smith, 50 Ark. 266, 7 S.W. 161. It is not alleged that under a different notice another result would have been obtained (Ellis v. Karl, 7 Neb. 381), nor that the electors were not apprised of the places where the election was to be held (State v. Lansing, 46 Neb. 514, 64 N.W. 1104), and the election cannot be held void for the reason stated in the petition alone, without further averments.

The next question is one of no little uncertainty and is quite difficult of satisfactory solution. It applies in some degree to both causes of action contained in the petition. Are these submissions dual, or in the alternative? If so, does the form in which the submissions were made render the proceedings void? The proposition to issue the electric light bonds was stated in this language: "Notice of Special Election. Notice is hereby given that on Tuesday, the twenty-sixth (26th) day of April, A. D. 1910, at the regular polling places, in the city of Fairbury, Jefferson county, Nebraska, a special election will be held for the purpose of submitting to the legal voters of said city of Fairbury the following proposition, to wit: Shall the mayor and city council of the city of Fairbury, Nebraska, issue the bonds of said city in the sum of twenty thousand dollars ($ 20,000), bearing the date of the day of their issue, and maturing in twenty years from date, bearing interest at the rate of five per cent. per annum, payable semiannually, said principal payable at any time after the expiration of ten years at the option of said city, for the purpose of raising a sum sufficient to purchase or install and establish an electric light system within said city of Fairbury, Nebraska?" It is conceded by both parties that at the time of the filing of the petition and issuance of the call for the election, and at all times thereafter, there was an electric light plant in the city, owned by private parties, and for the purchase of which, by the city, negotiations had been and were pending, and that it was the purpose to purchase the existing plant; but, in case purchase could not be made on favorable terms, the mayor and council should have authority to construct and install such plant as might be needed. The principal and leading purpose was to procure a system of which the city might be the owner. We have been furnished a copy of a very carefully prepared opinion by Honorable L. M. Pemberton, the judge of the district court before whom this case was tried, and, as it disposes of the questions involved in this part of the case in accord with our views, we avail ourselves of his reasoning, and copy quite largely therefrom. He says: "Sections 8994 and 8995, Ann. St. 1909, are the ones that seem to control in said matter. They provide that any city of the second class 'shall have the power and is hereby authorized to establish and maintain a system of electric lights for such city,' and that the city council shall have the power to levy a tax not exceeding five mills on the dollar in any one year for the purpose of establishing, extending and maintaining such system of electric lights. That when such tax should be insufficient to establish a system of electric lights as contemplated therein, such city may issue its bonds for the purpose of raising a sum sufficient to establish such an electric light system. It will be seen that the statute authorizes the issuance of bonds, when authorized by a vote of the electors, to establish a system of electric lights. The proposition submitted to the electors included the purchase of an electric light system. Does the statute confer authority upon the mayor and council to purchase a plant, even when authorized by a vote, or to submit that question to the electors?

"The word 'establish' is a word of various meanings, but there does not seem to be any dictionary definition that is the exact equivalent of the word 'purchase.' Its primary definition is: to make stable; to settle or fix firmly. Other definitions are: to set up or found; to place on a permanent footing; to put in a settled or efficient state or condition; to place upon a firm foundation. Century Standard, and Encyclopedic Dictionaries. It would seem that before an electric light plant could be purchased by the city it would have to be 'established' by some one else. Yet, it might not be within the above definitions. If it were about to be removed, or taken down, or to fall into disuse or decay, or were for any other cause in a precarious or inefficient condition, it would not be 'established' within the meaning of that word as contained in several of its definitions. And it might be necessary or proper for the city to purchase it in order to 'establish' it; that is, put it in a settled or efficient state or condition, or upon a firm foundation and permanent footing. See State v. Rogers, 107 Ala 444, 19 So. 909. The authority to establish a system of electric lights would seem to confer power to do anything necessary to provide the city with a permanent and efficient electric lighting plant. If by purchasing...