State ex rel. Loy v. Mote

• Decision Date: 02 June 1896
• Docket Number: 6554
• Citation: 67 N.W. 810,48 Neb. 683
• Parties: STATE OF NEBRASKA, EX REL. NELSON F. LOY, v. W. L. MOTE ET AL
• Court: Nebraska Supreme Court

67 N.W. 810

48 Neb. 683

STATE OF NEBRASKA, EX REL. NELSON F. LOY, v. W. L. MOTE ET AL

No. 6554

Supreme Court of Nebraska

June 2, 1896

ORIGINAL action in the nature of quo warranto to oust respondents, who are exercising the powers of trustees of a village having no legal existence. Writ allowed.

WRIT ALLOWED.

A. E Barnes and A. G. Kingsbury, for relator.

J. J McCarthy, contra.

OPINION

HARRISON, J.

On May 16, 1893, a petition was presented to the board of supervisors of Dixon county praying the incorporation of the territory therein described as a village, to be called the village of Allen. The petition had attached to it the signatures of thirty-six persons, who were said to represent and be a majority of the taxpayers within the bounds of the proposed village, and it was further made to appear by an affidavit accompanying the petition that there were 206 "actual inhabitants" of the territory which was to be included in the corporation boundaries of the village. On the same day the board of supervisors took action in the matter and made an order incorporating the territory described in the petition, naming the village "Allen" and appointing the respondents trustees for the village. The relator, who, it is claimed, at all times when opportunity for so doing offered, objected to the incorporation, instituted through the attorney general of the state an action of quo warranto in this court, the object being to obtain a judgment of ouster against the defendants, the trustees of the village of "Allen." Issues were joined and on request of the parties, H. J. Porter, Esq., of Ponca, was appointed to take the evidence and report the same to the court, which has been done and the cause submitted.

The two main questions raised by the pleadings and presented for determination are (1) that a large tract of farming or agricultural land, which was not adjoining nor connected with the village proper, nor in any manner used for or adapted to village purposes, was included in the corporate limits by the order of incorporation, and (2) that on the 16th of May, the time the petition was presented to the board of supervisors and the order incorporating the village was made, there were not 200 actual residents within the boundaries of the municipality then erected. The portion of our statutes under which the incorporation was had was section 40, article 1, chapter 14, Compiled Statutes, which is as follows: "Any town or village containing not less than two hundred nor more than fifteen hundred inhabitants, now incorporated as a city, town, or village, under the laws of this state, or that shall hereafter become organized pursuant to the provisions of this act, and any city of the second class which shall have adopted village government as provided by law, shall be a village and shall have the rights, powers, and immunities hereinafter granted, and none other, and shall be governed by the provisions of this subdivision; Provided, That cities of the second class heretofore incorporated, and containing not more than fifteen hundred inhabitants, shall continue to be and exercise the powers of cities of the second class, and the officers thereof shall continue to exercise the powers conferred herein upon officers...