State ex rel. Gardner v. Roggen

• Decision Date: 28 September 1887
• Citation: 22 Neb. 118,34 N.W. 108
• Parties: STATE EX REL. GARDNER v. ROGGEN, SECRETARY OF STATE, ETC., AND OTHERS.
• Court: Nebraska Supreme Court

22 Neb. 118

34 N.W. 108

STATE EX REL. GARDNER

v.ROGGEN, SECRETARY OF STATE, ETC., AND OTHERS.

Supreme Court of Nebraska.

September 28, 1887.

Syllabus by the Court.

A proposition submitted to the voters of a county, in which it is proposed to vote the bonds of such county to a railroad company, must designate the donee. A proposition in the alternative, to issue to a certain corporation named or to another designated corporation, is ineffectual to authorize the issuing of bonds, even if adopted by the legal voters.

Bonds issued by a county as a donation to a railroad company are invalid, unless they have indorsed thereon a certificate signed by the secretary and auditor of state, showing that they were issued pursuant to law.

Mandamus.J. R. Gilkerson, G. M. Lambertson, and J. M. Woolworth, for relator.

J. C. Cowin, for defendant.

MAXWELL, C. J.

This is an application for a mandamus to compel the defendants to certify the following bond, alleged to have been issued by the proper authorities of Butler county. The bond is in the words and figures following:

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                ¦“No. 3.¦UNITED STATES OF AMERICA.¦$500.¦
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State of Nebraska, County of Butler.

RAILROAD BOND.

Know all men by these presents, that the county of Butler, in the state of Nebraska, acknowledges itself indebted and justly bound to pay, and promises to pay, to the Lincoln & Northwestern Railroad Company or bearer, the sum of five hundred dollars, lawful money of the United States of America, at the office of the county treasurer of Butler county, twenty years from the date hereof, with interest from July 1, 1879, at the rate of eight per cent. per annum, payable annually on the first day of July in each year, from and after the date hereof, on the presentation and surrender, as they fall due, of the interest coupon notes annexed. This bond is one of a series of one hundred and six bonds of like tenor and date, amounting in the aggregate to fifty-three thousand dollars, executed and issued to the Lincoln & Northwestern Railroad Company, or bearer, as a donation made by said county, to aid in the construction and completion of a railroad from a point on the south line of Butler county, running thence to a point on the north line of said county, via Ulysses and David City. This bond is authorized by more than a two-thirds vote of the legal voters of said county, voting at an election legally called and held under and by virtue of an order of the county commissioners of said county, dated on the first day of May, A. D. 1879, and in pursuance of an act to enable counties, cities, and precincts to borrow money on their bonds to aid in the construction of works of internal improvement in this state, and to legalize bonds already issued for such purpose, passed February 15, 1869, and the resolution of the board of county commissioners, and a two-thirds vote of the electors of Butler county, at an election legally called and held for that purpose.

In witness whereof the said Butler county has caused this bond to be signed in its behalf by the chairman of the county commissioners of said county, attested by the clerk, and the seal of said county to be affixed at the office of the county clerk, in the county of Butler, state of Nebraska, this first day of July, A. D. 1879.

B. F. ROLPH, County Clerk.

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                ¦[Seal.]¦ADAM HALL, Chairman County Commissioners.”¦
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The proposition under which the bond was issued is as follows:

“PROPOSITION FOR RAILROAD BONDS AND TAX.

By virtue of authority in us vested by an act of the legislature of the state of Nebraska entitled ‘An act to enable counties, cities, and precincts to borrow money on their bonds to aid in the construction or completion of works of internal improvement in this state, and to legalize bonds already issued for such purposes,’ approved February 15, 1869, and the acts of the legislature of said state amendatory thereof, we, the county commissioners of Butler county, in the state of Nebraska, for the purpose of aiding the construction of a railroad from some point on the south line of said county to a point on the north line of said county via Ulysses and David City, do hereby submit to the legal voters of said county of Butler, to be voted upon by them at a special election, which is hereby called to be held on the fifth day of June, A. D. 1879, at the usual places of voting in the several precincts of said county, the following propositions or questions, that is to say: Shall the county commissioners of Butler county, in the state of Nebraska, be authorized to issue and give to the Lincoln & Northwestern Railroad Company, or the Blue Valley & Northwestern Railroad Company, fifty-three thousand dollars of the coupon bonds of Butler county, to be dated the first day of July, A. D. 1879, bearing interest from date at the rate of eight per cent. per annum, the interest payable annually at the office of the county treasurer of said county of Butler, and the principal to become due and payable in twenty years from the date of said bonds? and, in addition to the usual taxes, shall the proper officers be authorized to levy a special tax on all the taxable property within said county sufficient to pay the annual interest on said bonds as the same shall become due? and, after the expiration of ten years from the date of said bonds, shall the proper officers be authorized to levy a tax in like manner upon all the taxable property within said county, in addition to all other taxes, sufficient in amount to create a sinking fund for the purpose of paying at maturity the principal of said bonds? The whole amount of said bonds to be issued and given to one of the aforesaid companies upon the following conditions, and none other: That one of the said railroad companies shall construct, maintain, and operate a railroad, of the standard gauge, from some point on the south line of the said county of Butler,...