Perkins County, Neb., v. Graff

• Decision Date: 31 March 1902
• Docket Number: 1,619.
• Citation: 114 F. 441
• Parties: PERKINS COUNTY, NEB., v. GRAFF.
• Court: U.S. Court of Appeals — Eighth Circuit

114 F. 441

PERKINS COUNTY, NEB., v. GRAFF.

No. 1,619.

United States Court of Appeals, Eighth Circuit.

March 31, 1902

Syllabus by the Court.

In an election to determine whether or not bonds shall be issued to aid the construction of a work of internal improvement, an offer in the proposition submitted to employ bona fide residents upon the work is not an offer of an unlawful inducement, and will not invalidate the bonds.

The verb 'issue' means to emit or send forth, and it does not embrace the preliminary acts of signing and dating, but is confined to the delivery of bonds.

Where the proposition accepted called for the delivery of bonds in installments of $1,000 upon presentation of certificates of performance of work of the value of $1,000, a notice that the county will deliver the same in accordance with the terms of the proposition is a notice that the bonds will be issued at the times when the certificates are presented.

A loss of property or money by the obligee is as valid a consideration for an obligation as a gain by the obligor. A company agreed to construct and complete a canal, for bonds to be delivered in installments as the work progressed. Work of the value of $25,000 was performed, and bonds to this amount were delivered; but the work was never completed, and the county issuing the bonds derived no benefit from them. Held, the work performed by the company was a valid consideration for the bonds, though the county derived no advantage from the work.

A canal constructed for the purpose of irrigating lands in the state of Nebraska is an internal improvement, and bonds issued by a county in that state to aid it are sent forth for a public purpose, although its waters are drawn from a river or from other sources without the state.

Drawing water through a canal from one state into another for the purpose of irrigating lands in the latter state is not necessarily a violation of the constitution, laws, or policy of the former state, although that state reserves all the waters for itself and its citizens, for far as they are necessary for the beneficial uses to which the state and its citizens apply them.

This was an action on coupons cut from bonds of Perkins county Neb. The county defended on various grounds, which are noticed in the opinion. The material facts established at the trial were these: On July 12, 1894, the Equitable Irrigation & Water Power Company, a corporation, submitted to the board of county commissioners of Perkins county, Neb., a proposition to construct a canal for the purpose of irrigation, the development of water power, and other useful purposes, from a point on the Platte river about eight miles west of Julesburg, in the state of Colorado, to and through Perkins county, to the east line thereof, on the condition that the county would donate to the company its 6 per cent coupon negotiable bonds for $90,000, dated September 1, 1894 due 20 years thereafter; that these bonds should be delivered to the fiscal agency of the state of Nebraska, in the city of New York; and that this fiscal agency should deliver them to the company, in installments of $1,000, upon presentation of certificates of the engineer in charge of the work, attested by the president and secretary of the company, and approved by the board of county commissioners of Perkins county, that work to the amount of $1,000 had been completed upon the canal. The company also proposed, in consideration of receiving the proposed aid in this way, to commence work upon the canal on or before August 20, 1894, to complete it on September 1, 1895, and to give employment in its construction to bona fide residents of Perkins county so far as this course should not conflict with the completion of the work at the time proposed. The board of county commissioners of the county submitted the question of the issuing of the bonds in pursuance of this proposition to a vote of the electors of the county on August 17, 1894, and more than two-thirds of them voted to accept the proposition and issue the bonds. On August 21, 1894, the board of county commissioners of the county caused the proposition and the result of the vote to be entered upon the records of the county, and causes a notice of its adoption to be published in the county. The company entered upon the construction of the work, and, from time to time as it progressed, certificates of the amount of work completed, in the form and signed by the parties maned in the proposition, aggregating altogether $25,000, were issued; and, in pursuance of the contract, bonds to the amount of $25,000 were issued upon these certificates to the irrigation company. At the time of the commencement of this action the plaintiff was the owner of the coupons in suit, which were cut from these bonds. None of the bonds were issued until after October 30, 1894. The canal has never been completed. Upon this state of facts the court below instructed the jury at the close of the trial to return a verdict for the plaintiff for the amount of the coupons he owned and interest. The writ of error has been sued out to reverse the judgment based upon this verdict, and the county assigns as error the ruling of the court admitting the coupons in evidence, and its instruction to the jury to return a verdict for the plaintiff.

Frank H. Gaines (J. E. Kelby, J. A. Storey, Kelby, J. A. Storey, and B. F. Hastings, on the brief), for plaintiff in error.

C. B. Keller and J. M. Johnson, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the case as above.

The first ground upon which the validity of the bonds and coupons in issue is challenged is that the voters of the county were bribed to vote for their issue, because the proposition of the irrigation company, which they voted to accept, contained the offer 'to give employment in the construction of said canal to bona fide residents of Perkins county, Nebraska, so far as it shall not conflict with the completion of the work at the time herein stated. ' But there was no corrupt or illegal inducement in this proposal. When electors are called upon to choose between great moral or political principles or between candidates for official positions, the use of any pecuniary inducement to sway the choice of the voter is illegal and corrupt. But there was no choice of principles or of persons involved in the question whether or not this county should aid the construction of this canal. When the question to be determined is whether or not public aid shall be given to the construction of an internal improvement within a county, city, or other political division of a state, the primary question is whether or not the improvement will be of pecuniary benefit to the political subdivision and its people. The very purpose of the submission of the question to the voters is to enable them to balance in their own minds the pecuniary advantages and disadvantages which their county, city, or precinct will derive from the improvement, and the taxation which must follow the aid to tis construction proposed; and it is both lawful and proper that they should consider and be influenced by the gain or loss which, in their judgment, its construction will entail upon themselves and their county or city. Farmers along the line of this proposed canal were undoubtedly influenced to vote for it by the belief that the water it would conduct would enable them to raise larger crops and obtain larger incomes. The inhabitants of villages were probably induced to vote for it because it would furnish water power and water to their communities, and thus enable them to employ, and be employed in, the use of the machinery it would operate. These were proper inducements to influence the action of the voters of this county upon the question of the issue of these bonds. They were the...