State ex rel. Fremont, E. & M. V. R. Co. v. Babcock

• Decision Date: 06 February 1889
• Citation: 25 Neb. 709,41 N.W. 654
• Court: Nebraska Supreme Court
• Parties: STATE EX REL. FREMONT, E. & M. V. R. CO. v. BABCOCK, STATE AUDITOR, ET AL.

25 Neb. 709

41 N.W. 654

STATE EX REL. FREMONT, E. & M. V. R. CO.

v.BABCOCK, STATE AUDITOR, ET AL.

Supreme Court of Nebraska.

Feb. 6, 1889.

Syllabus by the Court.

1. Section 1 of the act entitled “An act to provide for the organization, government, and powers of cities and villages,” approved March 1, 1879, held to create, by its terms and force of said act, all towns and villages containing to exceed 1,500, and less than 15,000, inhabitants, into cities of the second class, without any acceptance or other act of such town or city, or of its inhabitants.

2. A city thus created out of a village possessed of a president and board of trustees may, until the election of a mayor and council, exercise the ordinary powers of a city of the second class, including the ordering of an election to vote bonds, and the issuing of bonds duly voted, through the instrumentality and agency of the said president and trustees.

Mandamus.

Application by the state, on the relation of the Fremont, Elkhorn & Missouri Valley Railroad Company, for a writ requiring H. A. Babcock, auditor of public accounts, and T. L. Laws, secretary of state, to register bonds issued by the city of Wahoo in aid of that railroad.John B. Hawley and N. C. Abbott, for relator.

The Attorney General, for defendants.

COBB, J.

Section 1 of the act entitled “An act to provide for the organization, government, and powers of cities and villages,” approved March 1, 1879, provides that “all cities, towns, and villages containing more than fifteen hundred, and less than fifteen 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.” It does not appear from the record before me what was the number of the inhabitants of Wahoo at the date of the taking effect of this act, but it may be presumed that it was less than 1,500; but it does appear from the answer that, at the date of the notice and call for the election to vote the bonds involved in this proceeding, the number of such inhabitants exceeded 1,500. The question presented is whether at that date Wahoo had, by the force and effect the jus vigore of the said act, become and was a city of the second class; and, as a secondary question, had such city, if it existed, the power, through the instrumentality and agency of the president and board of trustees of the late village of Wahoo, then in fact exercising municipal control, to order said election, issue the notice therefor, etc.? Neither the village nor the inhabitants of Wahoo had accepted a city charter, nor done any act to signify an intention to organize as a city. But this was not necessary. “The rule which applies to private corporations, that the incorporating act is ineffectual to constitute a corporate body until it is assented to or accepted by the corporators, has no application to statutes creating municipal corporations. These are imperative and binding, without any consent, unless the act is expressly made conditional.” 1 Dill. Mun. Corp. (3d Ed.) § 44.

In addition to the construction of the laws, generally, on this subject, as above, by the most approved authority on this branch of the law, a brief examination of the legislation of our own state cannot fail to confirm the view that, by virtue of the act in part above quoted, all towns and villages which at the date of its taking effect had to exceed 1,500, and less than 15,000, inhabitants, without any act on their part, or on the part of their inhabitants, become possessed of the powers enumerated in said act, or expressly bestowed upon cities of the second class by law; and it necessarily follows that all towns and villages which at that date contained less than 1,500 inhabitants, but whose inhabitants should, at a subsequent date, exceed that number, then by force of the act itself possess all such powers.

The act of 1873 (Gen. St. 136) provided by section 1 that “all cities and towns of the state of Nebraska...