State ex rel. Patterson v. Bd. of Com'rs of Douglas Cnty.

• Decision Date: 05 March 1896
• Citation: 47 Neb. 428,66 N.W. 434
• Parties: STATE EX REL. PATTERSON v. BOARD OF COM'RS OF DOUGLAS COUNTY ET AL.
• Court: Nebraska Supreme Court

47 Neb. 428

66 N.W. 434

STATE EX REL. PATTERSON

v.BOARD OF COM'RS OF DOUGLAS COUNTY ET AL.

Supreme Court of Nebraska.

March 5, 1896.

Syllabus by the Court.

1. By an act of the legislature there was provided to be appointed a board of trustees, which, when organized, should, in law and equity, be construed as a body corporate and politic, and which might, in its corporate name, sue and be sued, contract and be contracted with, acquire and hold real and personal property necessary for its corporate purposes, adopt and change its corporate seal, construct and operate a canal, for the purposes of commerce, and supplying power, heat, and light. Held, that this was not a municipal corporation, and that the attempt to make it a corporation was nugatory, because, in effect, the general corporation law in existence was thereby sought to be amended without its provisions being referred to in any way in the amendatory act.

2. In the title of an act, its scope was defined as authorizing counties of a prescribed description, among other powers conferred, to construct, own, and operate canals in certain defined ways, and also to acquire right of way and land for such purposes, and also to provide for the appointment of a board of trustees to carry such purposes into effect. In the act itself, provision was made for the appointment of a board of trustees, which, when organized, should, in law and equity, be construed a body corporate and politic; and in this board the act provided there should be vested the power to construct and operate such canal, and that, for those purposes, such board of trustees might, in its own name, acquire right of way and other required land, even by condemnation proceedings, if necessary. Held, that the subject of the act was not clearly expressed in its title, as required in section 11, art. 3, of the constitution of Nebraska, and that, since this defect rendered inoperative its other provisions, the entire act is null and void.

Error to district court, Douglas county; Ambrose, Duffie, and Keysor, Judges.

Mandamus, on the relation of David C. Patterson, against the board of county commissioners of Douglas county. Guy C. Barton and others intervened. To the judgment rendered, relator brings error. Affirmed.Charles J. Greene, John L. Kennedy, Chas. Ogden, Geo. W. Covell, and B. S. Baker, for plaintiff in error.

Chas. Offutt, W. S. Poppleton, and H. H. Baldrige, for defendants in error.

RYAN, C.

At the last session of the legislature of this state there was passed and approved an act, entitled “An act enabling counties in the state of Nebraska having a population of not less than 125,000 inhabitants to issue bonds, to construct, own and operate canals in the state of Nebraska for navigation, water power and other purposes, and generating of electric and other power and transmitting of the same for light, heat, power, and other purposes, and to acquire right of way and land for such purposes, and to provide for the appointment of a board of trustees to carry into effect the purposes of this act, and to levy taxes to pay the same and interest thereon, and to repeal section 2032a, Consolidated Statutes, 1893.” Sess. Laws 1895, c. 71. Douglas county alone, in this state, has a population adequate to render available the above provisions. In the body of the act in question it is provided that the bonds which may be issued shall not exceed in amount 10 per cent. of the assessed valuation of the county, and that whether or not bonds shall be voted must first be submitted to the voters of the county, in compliance with the prayer of a petition signed by 2,500 legal voters asking such submission, which petition must be presented to and acted upon by the county commissioners. A petition in conformity with the above requirements was presented to the board of county commissioners of Douglas county. This board refused to call an election, and, by mandamus in the proper district court, it was sought, by one of the petitioners, to compel the county board to order an election. The judgment of the district court was adverse to relator, and the correctness of this judgment is now challenged by this error proceeding.

It is very difficult to summarize the provisions of the above act within a reasonably brief space. Nevertheless, this shall now be attempted. After the proposition to issue bonds has been carried, it becomes the duty of the county commissioners to notify the judges of the district court of the result of the election, whereupon these judges are required to appoint five trustees. Each of the trustees must give an official bond, in such amount as the board of county commissioners may fix. It is provided that the board of trustees shall, “when duly organized be construed in law and equity a body corporate and politic, and shall be known by the name and style of ‘The Board of Canal Trustees of ______ County, Nebraska,’ and by such name and style may sue and be sued, contract and be contracted with, acquire and hold real estate and personal property necessary for its corporate purposes, and adopt a common seal and alter the same at pleasure, and shall exercise all the powers necessary to carry into effect the object for which such board shall have been appointed, and shall control and manage all the affairs and property which shall come into the hands or under the control of such board of trustees.” Sess. Laws 1895, p. 307, c. 71, § 1. It further provided that “such board of trustees shall have full power to pass all necessary rules and regulations for the proper management and conduct of the business of such board, and of such corporate body, and for carrying into effect the objects for which such board is created. Any board of canal trustees organized as provided in this act shall have power to make preliminary surveys, lay out, acquire right of way and other lands within such county, or within twenty miles of the limits of such county, necessary for its purposes, establish, construct and maintain and operate a canal through any county or counties in this state for navigation, water power and all other purposes, except irrigation, for generating electric and other power and transmitting the same for light, heat, power, and all other purposes, except irrigation, and may dispose of the water in such canal for domestic and for all other purposes except irrigation, and to control and dispose of water power, electric, pneumatic, hydraulic, or other power generated by such water power, also to operate a line of boats on such canal or granting the right for such navigation to any party or parties upon payment of tolls, subject to such rules and regulations as shall be established and adopted by such board of trustees: provided, that no exclusive right shall be granted to any person or persons or corporations, except that such board may lease to any party ground for manufacturing or industrial purposes for a term of years, which ground so leased shall be subject to re-appraisal for rental purposes every twenty years. All revenues derived by said board of trustees from every source shall be deposited with the county treasurer of such county, and by him be placed in a fund to be designated as the canal fund. The general expense, maintenance, extension or enlargement of such canal or other works connected therewith shall be paid out of said canal fund by the county treasurer of such county upon official orders issued by the board of canal trustees. All surplus moneys in said fund not needed for canal expenses, improvement or enlargement shall be placed in the general fund of the county, and may be used for all purposes for which the county general fund as now designated may be used. Such board of trustees for and on behalf of such county may acquire by purchase, condemnation or otherwise, whether within or without the county limits, if within twenty miles of the limits of such county, any and all real property necessary to carry into effect the objects for which such board shall have been appointed and which may be required for its corporate purposes and right of way for the canal and right of way privileges and easements, sites for reservoirs and dams, power houses and additional lands to be leased to persons, parties or corporations purchasing or using such power: provided, that all the moneys for the purchase of any real estate property shall be paid before possession is taken thereof, or any work done thereon, and all moneys for the condemnation of any property shall be paid into the county court of the county in which such property shall be condemned. Whenever the board of canal trustees of any county appointed under this act shall require any private property necessary for the purposes aforesaid, such property shall be acquired or condemned as nearly as may be in the same manner as is provided by law for the condemnation of right of way for railroad corporations within this state: provided, that proceedings to acquire possession by condemnation of property so taken shall in all cases be instituted in the county where the property sought to be taken or damaged is situated: provided, that when it shall be necessary in making any improvement by such board of trustees to enter upon any property held for public use they shall have power to do so, and may acquire right of way upon and over such property held for public use in the same manner as is above provided for acquiring private property by condemnation of such board of trustees, and may enter upon, use, widen, deepen and improve any stream, water way or lake that may be necessary to be used for such canal purposes, but in cases where public roads are crossed by such canal or tailrace or outlets thereof such board of trustees shall cause to be constructed and maintained bridges over such canal or tailrace or outlets thereof.” Sess. Laws 1895, p. 308, c. 71, § 1.

It is scarcely necessary, perhaps, to note that, in respect to the canal...