Inslee v. City of Bridgeport

• Decision Date: 12 January 1951
• Docket Number: No. 32814,32814
• Citation: 153 Neb. 559,45 N.W.2d 590
• Parties: INSLEE et al. v. CITY OF BRIDGE PORT et al.
• Court: Nebraska Supreme Court

Page 590

45 N.W.2d 590

153 Neb. 559

INSLEE et al. v. CITY OF BRIDGE PORT et al.

No. 32814.

Supreme Court of Nebraska.

Jan. 12, 1951.

Syllabus by the Court.

1. Section 18-412, R.S.1943, authorizes any city or village to construct, purchase, or otherwise acquire an electric light and power plant and real and personal property needed or useful in connection therewith, and pay the cost thereof by the issue and sale of revenue bonds or debentures or by pledging and hypothecating the revenue and earnings of any such plant owned or to be owned by such city or village only if the proposition is first submitted to the electorate and approved by a majority voting thereon.

2. A submission by a city council to the voters of such city of a proposition to issue revenue bonds in a stated amount for the purpose of constructing, purchasing, or otherwise acquiring an electric light and power system, distribution system, transmission lines, and real and personal property needed and used in connection therewith to serve said city and its inhabitants is not a dual proposition but a single one.

3. Such a proposition, if submitted in the language of section 18-412, R.S.1943, is sufficient.

4. Revenue bonds issued under the authority of a special election cannot be set aside simply because all that may have been said by interested parties during the campaign which preceded the election does not turn out to be in every respect true.

5. Generally, inducements in the way of statements and representations made to influence a voter will not invalidate an election if it does not appear that by coercion or fraud the voter was compelled to vote in a way he did not desire to vote.

6. The doctrine of equitable estoppel may under certain conditions apply to municipalities, and is based on the grounds of public policy and good faith, and interposed to prevent injury, fraud, injustice, and inequitable consequences. Where such do not appear the doctrine does not apply.

Davis, Stubbs & Healey, Lincoln, for appellants.

VanPelt, Marti & O'Gara, Lincoln, Robert J. Bulger, Bridgeport, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

This is an action brought in the district court for Morrill County by certain taxpayers, electors, and users of electric energy in the city of Bridgeport, to enjoin the public officials of the city from the issuance and sale of revenue bonds authorized by a municipal election.

The city of Bridgeport is a city of the second class, with a population of between 1,700 and 1,750, and will hereinafter be referred to as the city. Where we have occasion to refer to the Consumers Public Power District we will do so as the Consumers District.

For several years, since 1935, a group of citizens of the city has been interested in municipal ownership of electrical facilities to serve the city. This was at a time when the franchise of the corporation serving the city with electric energy expired. The Consumers District has served the city with electric energy since January 2, 1942.

On October 2, 1947, the mayor and city council appointed a special attorney, Robert J. Bulger, to handle the board of health operations and the electric light and general transactions dealing therewith for the city. The special attorney performed legal services for the city in connection with an election held in April 1948, to authorize the issuance of $14,000 of municipal bonds to construct a street lighting system for the city. The bonds failed to carry at the election. His next legal work for the city was in the instant case to enjoin the taking of depositions. Thereafter he performed no legal work for the city on power matters.

On January 1, 1948, the mayor and council for the city employed the engineering firm of Fulton and Cramer of Lincoln, Nebraska, to prepare an engineering report on the construction of a municipal electric system, and surveys and estimates of costs on the main street lighting system pursuant to their proposal by letter dated December 10, 1947, signed by the mayor. On or about May 12, 1948, the engineer's report was filed with the city clerk and will be discussed later in the opinion in connection with the questions presented on this appeal.

On July 1, 1948, the mayor and council of the city met in regular session in the city hall, and at that time passed a resolution calling for a special election for the 3d day of August 1948, at which time they proposed to submit to the electors of the city for their approval or disapproval the following: 'Shall the City of Bridgeport, Nebraska, construct, purchase or otherwise acquire, an electric light and power plant, distribution system, and transmission lines, and real and personal property needed and useful in connection therewith to serve said City and its inhabitants and pay the cost thereof by pledging and hypothecating the revenue and earnings of said electric light and power plant, distribution system and transmission lines, to be owned by said City, and

'Shall the City, in the exercise of said authority, issue and sell its Revenue Bonds of the principal amount of Two Hundred Twenty-five Thousand One Hundred Dollars ($225,100.00) and enter into such contracts in connection therewith as may be proper and necessary. Said Revenue Bonds shall be a lien only upon the revenues and earnings of the electric light and power plant, distribution system and transmission lines to be owned by said City and shall not be general obligations of the City and no taxes shall ever be levied upon property for their payment. Said bonds shall be issued at such time or times as the Mayor and Council may determine and be dated at the time of their issuance and shall become due and payable at such times as may be fixed by the Mayor and Council but in not exceeding twenty years from the date of their issuance and shall bear interest at a rate not exceeding four per cent (4%) per annum, payable semi-annually; provided, however, any or all of said bonds shall be redeemable at the option of the City at any time on or after five years from the date of issuance thereof or at any earlier time fixed by the Mayor and Council. The proceeds received from the sale of said bonds shall be used and applied only to construct, purchase, or otherwise acquire, said electric light and power plant, distribution system, and transmission lines, and real and personal property needed and useful in connection therewith for the service of the City and its inhabitants?'

In the latter part of June 1948, L. B. Winter, a local merchant and city treasurer for about twenty years and interested in municipal ownership for a considerable length of time on his own initiative called two public meetings to be held in the city hall for the purpose of discussing municipal ownership of an electric system for the city. Upon his invitation the mayor was present at both meetings, and at the evening meeting several members of the city council, the city clerk, the city attorney, and the special city attorney were present. These were not council meetings, and no minutes were kept by the city clerk. Mr. Winter presided, and stated the purpose of the meeting was to determine what to do about putting the question of municipal ownership to the electorate. He told those present that 'we wanted to carry a bond issue in an election, if possible, and we might need an organization to further that * * *.' The matter was generally discussed. The mayor addressed the meeting and said that it was up to the people of the city to decide whether or not they wanted to own their own electric light system; that he was not going to do anything about it; that he and the council were not going to sponsor and promote an advertising campaign or have anything to do with the election; and that if the people of the city wanted it bad enough, the mayor and the council would put it on the ballot.

At the evening meeting three joint-chairmen were selected, one of which was the city treasurer, to head an organization which was formed and known as the Bridgeport Taxpayers and Property Owners. In addition, four standing committees were selected, the absent voters committee, funds and finance, advertising and publicity and automobile and transportation committees. None of the public officers of the city except the city treasurer were asked to, or served on any of these committees. The co-chairmen of the Bridgeport Taxpayers and Property Owners organization were to use their judgment as they thought best in promoting the acquiring of an electric system for the city.

Several committee meetings were held, most of which were in Mr. Winter's hardware store, to map strategy from time to time as to what might be done to further the cause, and as to what advertising might be put out in such respect. The evidence is not clear as to the presence of members of the city council at these meetings, or whether Mr. Bulger, referred to as special city attorney, attended any of the meetings. The mayor was present on one or two occasions, one when he was asked to come and bring the engineer's report.

Prior to the election, at the request of the Bridgeport Taxpayers and Property Owners organization, Bulger visited certain cities operating electric systems under municipal ownership to ascertain the manner of operation, the income, the expenses, the profits, and other matters pertaining to such ownership. The results of these visits and the data received therefrom were reportd to the co-chairman of the organization.

A public meeting was arranged for the evening of July 29, 1948, at the American Legion hall, called by the Bridgeport Taxpayers and Property Owners, and at which Bulger presided. Representatives from cities having municipal ownership of electric systems were present, introduced, and expressed their views on the subject. Representatives of the Consumers District were present, and an official...