Osborn v. Village of Oakland

• Decision Date: 07 October 1896
• Docket Number: 8416
• Parties: GEORGE OSBORN, APPELLANT, v. VILLAGE OF OAKLAND ET AL. APPELLEES
• Court: Nebraska Supreme Court

68 N.W. 506

49 Neb. 340

GEORGE OSBORN, APPELLANT, v. VILLAGE OF OAKLAND ET AL. APPELLEES

No. 8416

Supreme Court of Nebraska

October 7, 1896

APPEAL from the district court of Burt county. Heard below before POWELL, J.

AFFIRMED.

M. R Hopewell and E. R. Duffie, for appellant.

J. G Arthur, Ira Thomas, and W. G. Sears, contra.

OPINION

NORVAL, J.

The village of Oakland was incorporated in 1881, and since which time the village organization has been maintained without any attempt to form or perfect a city government, until March 14, 1896, when the board of trustees, both by resolution and ordinance duly adopted, declared said village of Oakland to be a city of the second class, and the municipality was divided into two wards and the boundaries thereof defined. The board of trustees having threatened to call an election to be held on the first Tuesday in April, 1896, for the election of city officers, this action was instituted to enjoin the calling or holding of such proposed election. The petition sets up the foregoing facts, and further alleges that Oakland contains less than 1,000 inhabitants. A demurrer to the petition was sustained, and the action dismissed. Plaintiff appeals.

Section 1, article 1, chapter 14, Compiled Statutes, 1895, declares that "all cities, towns, and villages containing more than one thousand and less than twenty-five thousand inhabitants shall be cities of the second class and be governed by the provisions of this chapter, unless they shall adopt a village government as hereinafter provided." By the foregoing provision each village in this state containing the population required by statute is a city of the second class without any action on the part of the municipality, and it is the duty of the board of trustees to divide the territory embraced therein into not less than two wards, and call an election at the proper time for the election of city officers. (State v. Palmer, 210 Neb. 206; State v. Holden, 19 Neb. 249; State v. Babcock, 25 Neb. 709, 41 N.W. 654.) It follows that if Oakland has a population of over one thousand inhabitants, it is a city of the second class; otherwise not.

It is patent that the object and purpose of this proceeding is to test the corporate existence of Oakland as a city of the second class, and the question presented is whether injunction is the appropriate action. It is a general rule, supported by the decisions of this and other states, that equity will not grant a party relief by injunction, where he has a plain and adequate remedy at law. It is likewise a well established doctrine in this country that quo warranto is the proper remedy to inquire whether a municipal corporation was legally created, as well as to oust persons exercising the privileges and powers of corporate officers when the municipal corporation has no legal existence. (State v. Uridil, 37 Neb. 371, 55 N.W. 1072; State v. Dimond, 44 Neb. 154, 62 N.W. 498; State v. Mote, 48 Neb. 683, 67 N.W. 810; High, Extraordinary Legal Remedies [3d ed.] sec. 684.) An information in the nature of a quo warranto, and not a bill for injunction, is the appropriate remedy.

In 2 High, Injunctions, sec. 1261, it is said: "Equity is averse to interference by injunction with the formation of local governments or municipalities in...