1. Counties and county boards can exercise only such powers as are expressly conferred upon them by statute, and such grant of powers must be strictly construed. State v. Lincoln Co., 25 N. W. 91, 18 Neb. 283.
2. In the year 1886 the statute governing cities of the second class having a specified number of inhabitants provided that “each city governed by this act shall be divided into not less than four nor more than six wards” (section 8, art. 2, c. 14, Comp. St. 1895), and further provided: “Precinct lines in that part of any county not under township organization embraced within the corporate limits of a city of the second class, shall correspond with the ward lines in such city and such precincts shall correspond in number with the wards of the city and be co-extensive with the same.” Section 9, Id. Nebraska City was a city of the class referred to by these sections, and had been divided into four wards. On October 4, 1886, the county commissioners of Otoe County, wherein said city was situate,--the county not being under township organization,--attempted to establish a precinct designated as “Nebraska City Precinct,” and included therein the whole territory of Nebraska City and a number of sections of land. Held, that the commissioners had no power or jurisdiction to make such a precinct, and their order in that regard was void and of none effect.
3. On October 6, 1886, the county commissioners issued a call for an election in the so-called “Nebraska City Precinct,” at which was to be submitted to a vote of the electors thereof a proposition to issue bonds of the precinct in the sum of $40,000 to aid in the construction of a railroad. This call was issued under the provisions of section 14, c. 45, Comp. St. 1885, by which precincts were authorized to issue bonds for such purpose, if the proposition so to do be approved by a specified majority of the votes of the electors at an election called and held pursuant to, and in accordance with, the provisions of the section. The proposition received the requisite majority, and the commissioners issued or caused the bonds to be issued. Held, that there was no precinct in existence which could by its vote authorize the issuance of bonds in its name. The bonds were void, and an injunction, in an action by one or more of the taxpayers to be affected, for themselves and others, is a proper remedy, and will issue to restrain the levy of taxes with which to pay principal or interest of the bonds.
4. No questions were presented, considered, or adjudicated herein in regard to the rights or interests of purchasers of the bonds.
Appeal from district court, Otoe county; Chapman, Judge.
Action by Julius S. Morton and others against James Carlin and others. From a judgment for defendants, plaintiffs appeal. Reversed.
HARRISON, J.
The appellants, as citizens, property holders, and taxpayers of what had been known as “Nebraska City Precinct,” in their own behalf, and in behalf of other persons or taxpayers similarly situated, instituted this action against the appellees, the county commissioners and the county clerk of Otoe county, with the purpose of obtaining an injunction by which the appellees would be restrained from levying any tax on any property situate within the limits of what had been designated or known as “Nebraska City Precinct,” to be appropriated to the payment of the principal or interest of bonds issued as the obligations of the said precinct, in the aggregate principal sum of $40,000, and ostensibly “to aid in the construction of the Missouri Pacific Railway Company's railroad through said Nebraska City precinct, by purchase of right of way and grounds for depot therein.” This is a quotation from the wording in the body of what is attached to the record as an exhibit, and as being an exact counterpart of the printed portions of each of the bonds in question. The petition, after a statement of the interest of the appellants, on which was based their right to commence and prosecute this action, and an allegation of the official capacity of the appellees, respectively, contained further allegations as follows: “That the city of Nebraska City was in 1885 duly organized as a city of the second class, having over 5,000 inhabitants, and was from 1885 until the spring of 1891 such a city of the second class, governed by the laws of Nebraska holding and regulating such cities, and was and is a city in Otoe county, Nebraska. That Otoe county never at any time was organized under township organization. That by the laws governing such cities it is declared that ‘precinct lines in that part of any county not under township organization embraced within the corporate limits of a city of the second class, shall correspond with the ward lines of such city, and such precincts shall correspond in number with the wards of the city, and be co-extensive with the same.’ That said city was in 1885 divided into four (4) wards, and has ever since been, and now is, so divided into four (4) wards. That the authorities prior to December, 1890, never made any change in said city, but disregarding the law in such cases, and conniving to defraud these plaintiffs and other property holders and taxpayers within the pretended bounds of said Nebraska City precinct, said authorities of said Otoe county did on October 4, 1886, by an order made on said day by the commissioners of said county, declare that Nebraska City precinct should constitute all of said Nebraska City, and about ten (10) sections of land out of said city. Such order included in said pretended precinct all of said city, and all of sections 4, 5, 6, 7, part of 8, all of 14, 15, 16, 17, and 18 in town number 8 north, of range number 14 east, and sections 30, 31, 32, and 33 in town number 9, range 14, all in said county; four (4) of said sections being fractional. That plaintiffs own both real and personal property situated within the limits of said pretended precinct. That such precinct was so made for the express purpose of allowing and adding to the voters of said city to vote any indebtedness and any taxes upon the property holders of said pretended precinct. That in pursuance of said plan of the authorities of said county to defraud, and tax the property of such precinct with a heavy bonded indebtedness, they did on the 6th day of October, 1886, issue a call for the people of such pretended precinct to vote upon the proposition to issue forty thousand ($40,000) of bonds of said precinct, to be called ‘Nebraska City Precinct Bonds,’ to be issued and placed in the hands of three trustees, to be by them sold, and the proceeds from the sale of such bonds to be by said trustees paid over and delivered to certain persons and parties who had prior to said time purchased and donated to the Missouri Pacific Railroad Company a right of way through said city, and depot grounds in said city. That said parties had prior to said date given a contract to said railroad company,--such depot grounds and right of way in and through said city. That such election was held on the 16th day of November, 1886. That afterwards, in the year 1886, the county commissioners of said county declared that said vote was carried, and that the proposition for issuing bonds so submitted had been carried and adopted by the people of such precinct. And on the ______ of ______, 1886, such commissioners executed, issued, and delivered to three trustees such $40,000 of so-called ‘Nebraska City Precinct Bonds.’ That such bonds were by said trustees, as plaintiffs are informed, sold for the sum of about $30,000, and the proceeds of such sale turned over to the persons who claimed to have so purchased depot grounds and right of way, and expended such sum of money in so paying for such depot grounds and right of way, to carry out said contract made by such persons with said railway company. That such bonds are now claimed to be outstanding. Such bonds purport to draw interest at 5 per cent. per annum. That such bonds were not issued, and such call was not made for such bonds to be issued, for any works of internal improvement, but to help certain persons and parties out with such contract as made as aforesaid. That such bonds and the proceeds were issued as a donation to certain private persons and parties, contrary to law, and were issued for no purpose for which bonds can be lawfully issued. That such precinct was unlawfully organized. That there was not, and could not at that time be, under the law, any such precinct as said Nebraska City precinct, so to include a city of the second class, and ten sections of land outside. That early in 1891 the authorities of Otoe county, Nebraska, reorganized such territory embraced in so-called ‘Nebraska City Precinct,’ and made of Nebraska City, within the corporate limits, four (4) separate precincts; and the property lying outside of said city, being said sections of land before mentioned, was added and annexed to Four-Mile precinct and Wyoming precinct, in said county. That the defendants threaten to, and are about to, and will at once, unless restrained by order of this court, proceed to levy upon all of the property, real and personal, within the territory in said so-called ‘Nebraska City Precinct,’ a tax of fifty-five (55) mills upon the dollar, assessed valuation, for the purpose of paying interest and principal on such $40,000 bonds so wrongfully and unlawfully issued. That, when such bonds were issued, property of Otoe county was bonded 10 per cent. of its assessed valuation; the property of Nebraska City was bonded 20 per cent. of its assessed valuation. And that owing to such heavy bonded debt, the heavy expenses, and excessive taxation, property holders and taxpayers were then, and have ever since been,...
