State v. Babcock

• Decision Date: 06 January 1888
• Citation: 35 N.W. 941,22 Neb. 614
• Parties: STATE OF NEBRASKA, EX REL. CITY OF NORFOLK, v. H. A. BABCOCK, AUDITOR OF PUBLIC ACCOUNTS
• Court: Nebraska Supreme Court

35 N.W. 941

22 Neb. 614

STATE OF NEBRASKA, EX REL. CITY OF NORFOLK, v. H. A. BABCOCK, AUDITOR OF PUBLIC ACCOUNTS

Supreme Court of Nebraska

January 6, 1888

ORIGINAL application for mandamus, and submission of the same under Sec. 567 of the civil code.

WRIT ALLOWED.

F. A Wigton, for relator, cited: Mayor v. Newton, 23 Ala 660. Traver v. Merrick Co., 14 Neb. 333. Lowell v. Boston, 111 Mass. 463. Guernsey v. Burlington, 4 Dill., 374. Township v. Beasley, 94 U.S. 313. Bank v. Chillicothe, 7 Ohio 354. Hubbard v Sadler, 10 N. E. Rep., 426. Mills v. Gleason, 11 Wis. 493. State v. Madison, 7 Id., 688. Wyandotte v. Zeitz, 21 Kan. 653. Williamsport v. Commonwealth, 84 Penn. State, 487.

William Leese, Attorney General, for respondent.

OPINION

REESE, J.

This action is submitted under the provisions of section 567 of the civil code, the necessary affidavit that the proceeding is in good faith, to determine the rights of the parties, being filed.

The controversy is in relation to certain bonds issued by the city of Norfolk for the purpose of constructing a sewer. The bonds were issued in due form and presented to the auditor for registration and certification. That officer declined to register and certify the bonds, "solely on the ground that cities of the second class, having less than five thousand inhabitants, are not authorized to issue bonds to aid in the construction of sewers as works of internal improvement."

The cause is submitted upon an agreed statement of facts, which is as follows:

"The relator is, and for more than a year last past has been, a municipal corporation duly organized under the laws of Nebraska, a city of the second class, of over one thousand and less than five thousand inhabitants. On the first day of April, 1887, the assessed valuation of the relator was not less than $ 285,000. The relator has no bonded indebtedness prior to the bonds herein sought to be registered. The annexed transcript, marked 'Exhibit A,' which is incorporated into and made a part of this stipulation, is a true and accurate history and transcript of all things connected with and pertaining to the voting of $ 8,000 of bonds of said relator, on the second day of September, 1887, for the purpose of constructing sewers in said city. The bonds referred to in said transcript have been duly issued by the relator and submitted to defendant, who is auditor of public accounts, for registration, but defendant refused and still refuses to register said bonds, solely on the ground that cities of the second class having less than five thousand inhabitants are not authorized to issue bonds to aid in the construction of sewers, as works of internal improvements."

The application is for a mandamus to compel the auditor to register and certify the bonds. That officer, not being satisfied as to his duty, declined to act, and submits the question to this court for its decision.

As the city of Norfolk is a city containing more than one thousand and less than five thousand inhabitants, its authority must be decided under the provisions of the first division of chapter 14 of the Compiled Statutes of 1887, and by the provisions of subdivision 26 of section 39 of that act. It is under that section that cities of the second class in their corporate capacities are authorized and empowered to enact ordinances, "to construct and keep in repair culverts, drains, sewers, and cess-pools, and to regulate the use thereof."

The question here presented is, does the conferring of this power upon the municipality authorize it to issue bonds for the purpose of aiding in the construction of sewers?

Upon the argument it was contended, on the part of the respondent, that subdivision 3 of section 69, of the same chapter, which provides that the expenses of constructing bridges, culverts, and sewers shall be defrayed out of the general fund of the city or village, not to exceed two mills of the levy for general purposes. We think this provision must be held to apply to villages of the character named in section 40 of the same chapter, and containing not less than two hundred nor more than fifteen hundred (1,000?) inhabitants, and not to section 39, now under consideration. Therefore, the question of the power to issue bonds must be decided upon subdivision 26, above named.

The proposition submitted to and voted upon by the inhabitants of the city of Norfolk was that of issuing the bonds of the city, in the sum of $ 8,000, for the purpose of aiding in the construction of a sewer along and beneath Norfolk avenue, by said city, and the necessary grading therefor, and running east on the north side of said Norfolk avenue, to the north fork of the Elkhorn river. It will therefore be seen that the purpose of the issuance of the bonds was to raise money to construct the sewer under this principal street, and for the purpose of grading the street.

By the subdivision of section 39, above referred to, the city is authorized to construct and keep in repair culverts, drains, sewers, and cess-pools.

Considerable attention was given, in the argument of the case, to the proposition that the sewer alluded to was intended as and for the purpose of draining the avenue referred to, and carrying off the surplus water accumulating thereon.

This subdivision confers upon the municipality in express terms the right to construct the sewer, and we think that it may safely be said that, even without statutory authority, the right to improve the street in such a way as to make it passable at all seasons of the year, would be an inherent right vested in the municipality without express statutory authority therefor. But without discussing that proposition we will simply inquire whether the express authority to construct a sewer will carry with it...