Sommercamp v. Kelly

• Decision Date: 16 December 1902
• Citation: 71 P. 147,8 Idaho 712
• Parties: SOMMERCAMP v. KELLY
• Court: Idaho Supreme Court

71 P. 147

8 Idaho 712

SOMMERCAMP v. KELLY

Supreme Court of Idaho

December 16, 1902

CITY COUNCIL-SPECIAL MEETINGS - CITY ELECTIONS INCREASING INDEBTEDNESS.-Where there is a meeting of the city council and the mayor and all councilmen are present, excepting one they may transact any business that does not incur an indebtedness, even though the call was not made in writing as required by section 1 of the Session Laws of 1899, page 29.

NOTICE OF ELECTION BY MAYOR TO VOTE ON ISSUANCE OF BONDS.-Where the mayor publishes a proclamation for a period of more than thirty days in a newspaper of general circulation in the city, giving the time and place when an election will be held to vote upon a proposition to issue bonds for municipal improvements, it is a sufficient compliance with section 2 of the Session Laws of. 1899, page 30.

(Syllabus by the court.)

APPEAL from District Court, Washington County.

Demurrer to the complaint sustained, and judgment of the trial court reversed, and cause remanded, with costs to appellants.

Lot L. Feltham, for Appellant.

All the authorities cited by appellant bearing upon the points decided by the court are cited in the opinion.

There was no appearance on behalf of respondent and no brief filed.

STOCKSLAGER, J. Quarles, C. J., sat at the hearing, but took no part in the opinion. Sullivan, J., concurs.

OPINION

Facts fully set forth in opinion.

STOCKSLAGER J.

This is an action to enjoin the city council of the city of Weiser from issuing and disposing of certain bonds of the city. The complaint alleges: "That Thomas E. Kelly is mayor of and John J. Fuller, J. B. Coakley, A. W. Ryan, A. J. Hopkins, A. F. Hitt, and J. A. McCune are the councilmen of, the city of Weiser. That on the nineteenth day of June, 1902, pursuant to a call of said mayor, the council convened in special session for the purpose of considering the matter of submitting to the qualified taxpayers the question of the issuance of municipal coupon bonds for the purpose of constructing in said city a system of waterworks, electric lights, and for the further purpose of purchasing an apparatus for fire department. That at said meeting, a quorum being present, it was determined to ascertain the assessed valuation of the real estate of said city for the year 1901, as a basis upon which to calculate the amount of bonds that may be voted for said purpose, and thereupon a committee consisting of two of said councilmen was appointed to procure from the county assessor of the county of Washington a certificate showing the assessed valuation of the real estate of said city for the year 1901. That on the twenty-third day of June, 1902, there was filed in the office of the clerk of said city the certificate of said assessor of Washington county, Idaho showing that the assessed valuation of the real estate of said city for 1901 aggregated the amount of $ 268,900.40, and thereafter, on said day, at an adjourned meeting of said council, an ordinance--No. 62 of the ordinances of said city--was passed, providing for an election to be held within the said city on the thirty-first day of July, 1902, for the purpose of submitting to the electors and taxpayers of said city the question of the issuance by said city of municipal coupon bonds, in accordance with the terms of said ordinance in the aggregate sum of $ 40,000, which ordinance was duly passed and approved on the twenty-third day of June, 1902, and was duly published for six consecutive weeks in the 'Weiser Signal,' a semi-weekly newspaper of general circulation, published at Weiser, and for five consecutive weeks in the 'Weiser World,' a weekly newspaper of general circulation published at Weiser, prior to said election. That said ordinance No. 62 provided for the issuance of $ 33,500 of bonds for the construction of municipal waterworks, for the issuance of $ 3,500 of bonds for the construction of an electric light plant, and for the issuance of $ 3,000 of bonds for the establishment and equipment of a fire department, and further provided for a sinking fund for the payment of said bonds at maturity, and the interest accruing thereon. That in accordance with the provisions of said ordinance No. 62, the said mayor issued his proclamation, giving notice of said special election, which proclamation was duly published in the 'Weiser Signal,' a semi-weekly newspaper of general circulation, etc. , in the issue of June 25, 1902, and was also published in the 'Weiser World,' of like circulation, in the issue of June 27, 1902. That on the thirty-first day of July, 1902, Stewart H. Travis, city clerk of said city, in accordance with the requirements of section 5 of ordinance No. 31 of said city, relating to elections, made out and posted in three public places in each of the three wards of said city a notice of said special bond election. That thereafter, and in accordance with said proclamation of said mayor, the registrars of the several wards of said city, theretofore appointed, opened their books for the registration of all qualified electors who were taxpayers of said city, and due registration was made of all persons qualified and presenting themselves for registration during the period of time set forth in said proclamation, and after the closing of said period of registration said registrars duly certified their lists of registry to the clerk of said city, showing the legal registration of all persons qualified and presenting themselves for registration, and said registrars complied strictly with all the laws and requirements of registration in said election, as shown by the certificate of the city clerk. That the time and place of holding the said election were known to all the qualified electors in said city, and thereafter, on the thirty-first day of July, 1902, there was held in said city of Weiser said special election in pursuance of the notices so given, at which all of the qualified electors who were taxpayers of said city, and who were duly registered for said special election, were permitted to cast their ballots for or against said propositions. That on the first day of August, 1902, said mayor and city council met in special session for the purpose of canvassing the votes cast, at which session, upon the canvass of all legal votes so cast, it was determined and certified that said first proposition so submitted was carried by a total vote of one hundred and twenty-two for, and but fifteen against, said proposition. That said second proposition was carried by a total vote of one hundred and sixteen votes for and but fifteen against said proposition, and that said third proposition was carried by a total vote of a one hundred and sixteen for and but seventeen against said proposition, as shown by the records of said meeting. That, in accordance with the canvass of said vote, said mayor and council duly certified on said first day of August, 1902, to the said vote on said bond election in writing, and filed said certificate in the office of the city clerk. That the said defendants have certified and declared, after a canvass of the votes cast at said special election, that over two-thirds of the qualified electors who are taxpayers of said city voting at said city election assented to the issuance of said bonds and the incurring of the indebtedness thereby created for the purposes aforesaid, and said defendants threaten to issue said bonds, and, unless restrained by the order of this court, will proceed to issue said bonds, and sell and deliver them into the hands of buyers, and will thus create a bonded indebtedness against said city in the sum of $ 40,000, and will proceed to levy and collect an annual tax upon all taxable property in said city to create a fund from which to pay the interest on said bonds semi-annually as it falls due, and also to constitute a sinking fund for the payment of the principal thereof, and will thus create a lien upon the property of the plaintiff, to his great injury therein, and plaintiff has no plain, speedy, or adequate remedy in the premises in the ordinary course of law. That said proposed issue of bonds is wrongful and without authority of law, for the reason that the requirements of law relating to special elections have not been complied with in the...