State ex rel. City of Fremont v. Babcock

• Decision Date: 17 January 1889
• Parties: STATE EX REL. CITY OF FREMONT v. BABCOCK.
• Court: Nebraska Supreme Court

25 Neb. 500

41 N.W. 450

STATE EX REL. CITY OF FREMONT

v.BABCOCK.

Supreme Court of Nebraska.

Jan. 17, 1889.

Syllabus by the Court.

1. Cities of the second class, having more than 5,000, and less than 25,000, inhabitants, may issue bonds for the purpose of constructing, maintaining, and operating a system of water-works for said city, but the authority to do so must be conferred upon the officers of such city by a majority vote of the people at an election held for that purpose, and of which four weeks' notice must be given by publication in a newspaper published within the county in which such city is located.

2. The same rule must be applied to the issuance of “paving bonds” when issued under the authority of subdivision 58, § 52, art. 2, c. 14, Comp. St.

3. In an application for a writ of mandamus, to compel the state auditor to register and certify municipal bonds, a writ will not issue until a strict compliance with all the prerequisites of the statutes is shown.

Mandamus.

F. Dolezal and J. E. Frick, for relator.

William Leese, Atty. Gen., for respondent.

REESE, C. J.

This is an application for a peremptory writ of mandamus to compel the defendant to register and certify two sets of bonds issued by the city of Fremont, dated December 1, 1888, One set of said bonds is denominated “Water Bonds, Series B,” the other is denominated “Paving Bonds.” It appears from the record that the mayor and council of the city of Fremont submitted to the electors of said city, at one election, the two propositions for the issuance of the two sets of bonds referred to. The proposition was published in the Fremont Tribune, a daily newspaper printed and published in Dodge county, one time, which publication was made on the 10th day of July, 1888. The election was held on the 30th day of the same month. The question presented is, was sufficient notice of the election given to meet the requirements of the law? The auditor. believing the bonds were not legally issued, has declined to register and certify them.

Our attention will be first given to the set of bonds denominated “Water Bonds.” Section 66, art. 2, c. 14, Comp. St. 1887, is as follows: “The mayor and council shall have power to borrow money and pledge the property and credit of the city upon its negotiable bonds or otherwise, to an amount not exceeding in the aggregate one hundred thousand dollars, for the purpose of constructing, or aiding in the construction, of a system of sewerage,--authority therefor having first been obtained by a majority vote of the people at an election or elections, upon a proposition or propositions submitted in the manner provided by law for the submission of propositions to aid in the construction of railroads and other works of internal improvement; and to borrow money and pledge the property and credit of the city in the manner aforesaid, and upon being authorized as aforesaid, to an amount not exceeding one hundred thousand dollars, for the purpose of constructing, maintaining, and operating a system of water-works for said city.” It will be seen that this section provides that the proposition must be submitted to a vote of the people, in the manner provided by law for the submission of propositions to aid in the construction of railroads and other works of internal improvement. Section 1 of chapter 45, entitled “Internal Improvements,” requires the question of issuing bonds to be submitted to a vote of the legal voters of a county or city in the manner provided by chapter 9 of the Revised Statutes. The chapter referred to is found at page 35 of the Revised Statutes, published in 1866; section 21 of which provides, among other things, that “the whole question, including the sum desired to be raised, or the amount of the taxes desired to be levied, or the rate per annum, and the...