State ex rel. Long v. City of Nebraska City

• Court: Nebraska Supreme Court
• Writing for the Court: GOSS, C. J.
• Citation: State ex rel. Long v. City of Nebraska City, 123 Neb. 614, 243 N.W. 858 (Neb. 1932)
• Decision Date: 22 July 1932
• Docket Number: 28192
• Parties: STATE, EX REL. THURSTON J. LONG, APPELLEE, v. CITY OF NEBRASKA CITY ET AL., APPELLANTS

243 N.W. 858

123 Neb. 614

STATE, EX REL. THURSTON J. LONG, APPELLEE, v. CITY OF NEBRASKA CITY ET AL., APPELLANTS

No. 28192

Supreme Court of Nebraska

July 22, 1932

APPEAL from the district court for Otoe county: JAMES T. BEGLEY JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. A November general election is a " regular election" within the meaning of that term as used in section 71-2407 Comp. St. 1929, ordering municipal authorities to submit to a vote of the electors the question of a levy to provide for a community nurse.

2. When notice is in fact actually brought home to the great body of the voters, an election will not be held invalid for lack of notice where it does not appear that enough voters to change the result failed to vote because of lack of notice.

Appeal from District Court, Otoe County; Begley, Judge.

Mandamus proceeding by the State, on the relation of Thurston J. Long, against Nebraska City and others. From a judgment allowing the peremptory writ of mandamus, the respondents appeal.

Judgment affirmed.

Thomas E. Dunbar, for appellants.

D. W. Livingston, Edwin Moran and Andrew P. Moran, contra.

Heard before GOSS, C. J., ROSE, DEAN, EBERLY, DAY and PAINE, JJ., and RYAN, District Judge.

OPINION

GOSS, C. J.

This is an appeal from a judgment allowing a peremptory writ of mandamus commanding respondents to include in the annual estimate for 1931, certified to the county clerk, an item of $ 1,800 for the annual salary of a visiting or community nurse.

The action was begun on August 8, 1931. On August 29, 1931, after a full hearing upon the merits, the district court granted a peremptory writ ordering the city officials to convene and certify the item to the county clerk within 30 days. The respondents were denied supersedeas but appealed to this court. However, on September 26, 1931, they obeyed the unsuperseded order, made an amended estimate, including this levy for the visiting nurse fund and delivered it to the county clerk. That official refused to place the levy on the tax books of the county. Nothing further was done until October 24, 1931, when the same relator brought mandamus to compel the county clerk to act. Upon trial to the court a peremptory writ was granted on October 30, 1931, directing the county clerk forthwith to enter the special levy. On appeal we reversed the judgment particularly because the additional item had been certified to the county clerk after he had completed the tax list duly levied by the county board of equalization and had delivered it to the county treasurer. We further called attention to the delay in seeking mandamus against the county clerk and to the disorder and confusion likely to result not so much from changes in the books of the treasurer as from rights and liabilities arising out of 1931 taxes already paid and receipts in full already issued by the treasurer. State v. Barstler, 122 Neb. 167, 240 N.W. 273. Notwithstanding their aforesaid compliance on September 26, 1931, with the writ in the instant cause, the respondents continue their defense here.

Section 71-2407, Comp. St. 1929, is as follows: "Whenever petitions signed by twenty-five per cent. of the electors of a city, county, or village shall be presented to the city council, board of supervisors or commissioners or trustees praying for the submission of the question of making a levy to provide for salary and expenses of said nurse, and stating the amount of the levy and the period of years in which the same shall be made, it shall be the duty of said council, board of supervisors or commissioners or village board to submit the question to a vote of the people at a regular, or special election called for that purpose. If the question is submitted at a special election, three weeks' notice of said special election shall be given by publication in some newspaper of general circulation which said notice shall be published three consecutive weeks, if the election is in a city or village; or if in a village and no paper is published therein, then said notice shall be posted in three of the most public places in said village. If a majority of the votes cast at such election on said question be in favor of said levy, then the regularly constituted authorities of said city, county or village shall include the same in the estimate for expenses for each year during the period for which adopted unless the same shall be revoked and the tax shall be levied and collected in the same manner as other taxes are levied and collected."

A proper number of qualified electors presented their petitions for the submission of the question. The respondents recognized their duty and proceeded to do it. General city elections are provided by statute to be held on the first Tuesday in April. Comp. St. 1929, sec. 16-301. Respondents decided to submit the question at the imminent general election, which was done. Respondents assert that as a city election it was nugatory because there was no resolution of the city council or proclamation by the mayor relating to the submission. On October 21, 1931, the mayor and city commission duly passed a carefully detailed ordinance, consisting of eight sections, expressly providing for this election to be held on November 4, 1931, and for the ballots, devised so as to express the proposition submitted to the voters, to be printed and transmitted by the city clerk to the county clerk for distribution to the city polling places. The fifth section provided that the duly appointed and qualified judges of the general election should officiate as to the balloting on this proposition submitted to the electors of the city. The seventh section set forth a fully described notice of the election to be published in Nebraska Daily News-Press and to be posted in each of the described voting precincts in the city. We think the ordinance which was passed by the city council, approved by the mayor and attested by the city clerk, was as sufficient in form as any resolution or proclamation.

Respondents seem to regard the election of November 4, 1931, as far as it affects the municipal question voted upon, as a special city election. They argue that, as it was...