State ex rel. City of Lincoln v. Babcock

• Decision Date: 24 February 1886
• Citation: 27 N.W. 98,19 Neb. 230
• Parties: STATE EX REL. CITY OF LINCOLN v. BABCOCK, AUDITOR, ETC., AND OTHERS.
• Court: Nebraska Supreme Court

19 Neb. 230

27 N.W. 98

STATE EX REL. CITY OF LINCOLN

v.BABCOCK, AUDITOR, ETC., AND OTHERS.

Supreme Court of Nebraska.

Filed February 24, 1886.

Mandamus.J. R. Webster, A. W. Field, and J. M. Woolworth, for plaintiff.

Attorney General and Mason & Whedon, for respondent.

MAXWELL, C. J.

This is an application for a mandamus against the secretary of state and auditor to compel them to register, “and under their seal of office certify upon,” bonds to the amount of $50,000, issued as a donation to the Missouri Pacific Railway; “that they have been regularly and legally issued,” etc. The relator alleges in his petition that--

“(3) Prior to the tenth day of October, 1885, in due conformity to law, the relator, the city of Lincoln, had issued its bonds in aid of the construction of works of internal improvement, as follows: In 1872, to the Atchison & Nebraska Railroad Company, $9,500; in 1880, to the Lincoln & Northwestern Railroad Company, $25,000; which were issued by said city in aid of works of internal improvement, and amount to $34,500.

(4) On the tenth day of October, 1885, the assessed valuation of all taxable property in the city of Lincoln amounted to the sum of $2,183,030, as the same was assessed and returned at the time of the assessments in April and May of the year 1884, for revenue purposes.

(5) On the seventh day of September, A. D. 1885, the mayor and council of said city of Lincoln duly passed an ordinance, calling a special election in said city of Lincoln, to be held on the tenth day of October, 1885, for the purpose of taking the vote of the electors of said city upon a proposition to them submitted to issue and donate to the Missouri Pacific Railway Company the bonds of said city of Lincoln, to the amount of $50,000, dated November 1, 1885, payable twenty years thereafter, with interest from the first day of January, 1886, at the rate of five per cent. per annum, payable semi-annually, interest and principal payable at the bank of Kountz Brothers, in the city of New York, to aid said Missouri Pacific Railroad Company in the construction of its road from its main line, in Cass county, to said city of Lincoln.

(6) Said proposition was conditioned that said railway company should construct a first-class railroad, of standard gauge, into said city of Lincoln, connected with the main line of said company already constructed, so that continuous trains might be run thereon from its main line into said city; that said company should begin active construction of said road within thirty days from the date of the election and declaration of the adoption of the proposition, and complete said railroad, with a necessary depot for freight and passengers at said city, and other appurtenances, and run trains thereon from its already constructed line in this state into said city of Lincoln by the first day of September, 1886.

(7) By said proposition it was also provided that thirty days after the active work of constructing said railroad should have begun said bonds should be executed and deposited in the hands of a trustee, to be appointed by the mayor of said city, to hold in trust for said company and for said city, to be delivered to said company if it should comply with the conditions aforesaid, otherwise to be returned to said city to be canceled.

(8) Said ordinance was duly approved, and was published, as required by law, for four weeks continuously in the Nebraska State Journal, a weekly newspaper published in said city, commencing the tenth day of September, 1885; and such election was duly and regularly held the tenth day of October 1885; and on the twelfth day of October, 1885, the returns of said election were by the mayor and council of said city of Lincoln duly canvassed, and the vote of the electors cast found and declared to be in favor of said proposition, 1,799 votes; against said proposition, 56 votes; and more than two-thirds of the votes cast being in favor of said proposition, the result was thereupon, by the mayor and council of said city, declared to be that said proposition was adopted, and the proposition and result was entered upon the records of said city of Lincoln, and notice of its adoption was published in said weekly newspaper, the Nebraska State Journal, as required by law, for two weeks continuously prior to the issue of said bonds.

(9) The Missouri Pacific Railway Company on its part accepted the result so declared, and entered upon active construction of its railway on or about the eighth day of November, A. D. 1885, and within less than thirty days after said election, and has completed and laid about two miles of its road ready for the passage of rolling stock, engines, and cars, and has acquired by purchase a large amount of real estate in fee-simple for depot grounds; for which real estate so purchased it has paid out the sum of eighty thousand dollars; and is now engaged in acquiring, partly by purchase and partly by condemnation, grounds for depots, side tracks, yard, and appurtenant uses, tracts of ground aggregating fifty-one acres in and adjacent to said city, having to this time fully complied with all the terms and conditions of said proposition on its part to be performed.

(10) Pursuant to said proposition and facts aforesaid, thirty days' after actual work of construction of said railroad had been commenced, by order of the mayor and council of said city the mayor and clerk of said city proceeded to sign and execute said bonds, and the mayor of said city named and designated the First National Bank of Lincoln, Nebraska, as trustee to receive and hold the same under the terms of said ordinance and proposition so adopted by the electors; and thereupon, before delivering said bonds to said trustee, the relator applied to the respondents H. A. Babcock, auditor of public accounts, and Edward P. Roggan, secretary of the state of Nebraska, under the provisions of “An act to provide for the registration by the auditor of public accounts of bonds issued by villages and cities of the second class,” approved March 5, 1885, for the registration of said bonds, and requested that they certify upon said bonds that they have been regularly issued and registered in the office of the auditor of public accounts, and furnished to said auditor a transcript of all the proceedings had previous to the issuance of said bonds relative thereto, duly certified under the hand of R. C. Manley, city clerk of said city, authenticated by the seal of said city, and offered to pay said auditor the legal fees therefor, but the registration of said bonds was by the respondents refused.

(11) Relator shows that, so far as it is advised, the reason wherefor said respondents refuse to register said bonds, as they claim, is that the said issue is excessive in amount, and is in excess of the power of said city to issue bonds, because, as respondents claim, the city of Lincoln has no power to issue bonds for aid of works of internal improvement exceeding, together with outstanding bonds for whatsoever purpose issued, the amount of ten per centum of the assessed valuation of said city; and that the outstanding obligations of said city, together with the proposed $50,000 of bonds, exceed the sum of $218,303.”

“(13) But the relator shows all its outstanding bond obligations, of every character, unpaid the tenth day of October, 1885, or November 1, 1885, together with the year, and the purpose of their issue, were and are as follows:

+-----------------------------------------------------------------------------+
                ¦For aid of works of internal improvement above stated,      ¦       ¦$34,500 ¦
                +------------------------------------------------------------+-------+--------¦
                ¦For protection from fire, (fire apparatus, etc.,) charter of¦$20,000¦        ¦
                ¦1871, in 1872,                                              ¦       ¦        ¦
                +------------------------------------------------------------+-------+--------¦
                ¦To fund floating debt deficit of general revenue, charter of¦30,000 ¦        ¦
                ¦1871, in 1872,                                              ¦       ¦        ¦
                +------------------------------------------------------------+-------+--------¦
                ¦To fund floating debt deficit of general revenue, charter of¦53,000 ¦        ¦
                ¦1871, in 1875,                                              ¦       ¦        ¦
                +------------------------------------------------------------+-------+--------¦
                ¦For construction of water-works and water supply charter of ¦       ¦        ¦
                ¦1883, in 1882 and 1884, the water-works being property of   ¦110,000¦        ¦
                ¦said city,

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