State ex rel. Omaha & R. V. R. Co. v. Babcock

• Decision Date: 09 February 1887
• Citation: 21 Neb. 187,31 N.W. 682
• Parties: STATE EX REL. OMAHA & R. V. R. CO. v. BABCOCK, AUDITOR, ETC.
• Court: Nebraska Supreme Court

21 Neb. 187

31 N.W. 682

STATE EX REL. OMAHA & R. V. R. CO.

v.BABCOCK, AUDITOR, ETC.

Supreme Court of Nebraska.

February 9, 1887.

Syllabus by the Court.

Under the provisions of section 14, c. 45, Comp. St. Neb. 1885, to authorize the county commissioners to call a special precinct election for the purpose of voting bonds in a precinct in aid of works of internal improvements, etc., a petition, signed by not less than 50 freeholders of such precinct, must be presented to such county commissioners, setting forth the nature of the work contemplated, the amount of bonds sought to be voted, the rate of interest, and the date when the principal and interest shall become due. An election called and held without such petition is of no validity.

Mandamus.

Williams, Jenckes & Redlon, for relator.

The Attorney General, for respondent.

MAXWELL, C. J.

This is an application for a peremptory writ of mandamus to compel the defendant, as auditor of public accounts, to certify certain bonds issued by Dannebrog precinct to the relator. The case is submitted upon the following stipulation of facts:

“(1) That the plaintiff is a railway corporation organized and existing under the laws of the state of Nebraska, and the corporate successor to the Omaha & Republican Valley Railroad Company, and to all its rights, franchises, properties, and lines of railway, and appurtenances thereunto belonging.

(2) That the defendant H. A. Babcock is the duly elected and qualified auditor of public accounts of the state of Nebraska, and has been performing the duties of such office since the first Thursday after the first Tuesday in the month of January, 1884.

(3) That Dannebrog precinct was duly erected and denominated a precinct of Howard county, Nebraska, prior to the twenty-seventh day of April, 1885, and that Howard county is duly organized as such county under the laws of the state of Nebraska.

(4) That on the twenty-seventh day of April, 1885, twenty-seven taxpayers and citizens of said Dannebrog precinct petitioned the county commissioners of said Howard county to call a special election in said precinct for the purpose of voting on a proposition to issue bonds of said precinct in the sum of $13,000, to aid the Omaha & Republican Valley Railroad Company in the construction and equipment of its line of railroad through said precinct, upon the line specified in the copy of said proposition. * * *

(5) That no bond was executed or filed conditioned to save the said Howard county harmless against the payment of the expenses of such election in case the said proposition should fail to receive the required number of votes to secure its adoption.

(6) That on the twenty-seventh day of April, 1885, the Omaha & Republican Valley Railroad Company, by its duly-authorized agent, filed, in the office of the county commissioners of said Howard county, a proposition to the qualified electors of said Dannebrog precinct to vote the bonds of such precinct in the sum of thirteen thousand dollars, to aid the said company in the construction of its line of railroad through said precinct on the line of route specified in the copy of the proposition. * * *

(7) That on the fourteenth day of May, 1885, the said county commissioners, in lawful session, called a special election to be holden in said precinct on the twenty-third day of June, 1885, for the purpose of submitting said proposition to the qualified electors of said precinct.

(8) That due and legal notice of such election, together with said proposition, was published for the time and in the manner and form required by law, and a copy of said proposition was duly posted up at the polls during said day of election.

(9) That said election was held at the time and place designated in said call and notice.

(10) That the result of said election was duly returned and canvassed as required by law, and that the result thereof was duly certified to the said county commissioners, and that the whole number of votes cast at said election in favor of said proposition was two hundred and thirty-three, and that the whole number of votes cast thereat against said proposition was thirty-nine.

(11) That thereupon the said county commissioners declared said proposition adopted, and ordered the same, together with the result of said election, to be spread at large upon the commissioner's record of said county, and ordered notice thereof to be published for the time and manner required by law, all of which was done accordingly.

(12) That the plaintiff and its said corporate predecessor have done and performed all things on their part required by law, with reference to the submission of said proposition, and to the construction, equipment, completion, and operation of plaintiff's said line of railroad, to insure the issuance to it of valid and subsisting bonds under said proposition, and that prior to the twenty-seventh day of November, 1885, the plaintiff had fully complied on its part with all the terms and conditions of such proposition, and that from a time prior to the last-named date until the present time the inhabitants of said Dannebrog precinct have been in the enjoyment of the benefits derived from the daily operation of plaintiff's said line of railroad.

(13) That on the twenty-seventh day of November, 1885, the county commissioners of said Howard county executed and issued the bonds of said Dannebrog precinct, in the aggregate sum of thirteen thousand dollars, under the terms and conditions of said proposition, and delivered the same to plaintiff, and that the aggregate sum of such bonds is within the limit of the per cent. of the valuation of the property of such precinct that may be legally voted by and...