State v. Cherry County
| Decision Date | 21 June 1899 |
| Docket Number | 10814 |
| Citation | 79 N.W. 825,58 Neb. 734 |
| Parties | STATE OF NEBRASKA v. CHERRY COUNTY |
| Court | Nebraska Supreme Court |
ERROR from the district court of Lancaster county. Tried below before HOLMES, J. Reversed.
REVERSED.
C. J Smyth, Attorney General, and George F. Corcoran, for the state:
The court should declare the bonds invalid on the ground that the notice of the election at which they were voted was insufficient.
A. M. Morrissey, contra.
Cases cited by the county attorney are reviewed in the opinion.
The electors of Cherry county, at the general election held in said county in November, 1898, voted upon, and carried, the proposition to issue $ 12,000 in county bonds for the purpose of erecting a court house. The bonds were issued by the authorities of the county, and were by the auditor of public accounts registered in his office. The board of educational lands and funds agreed with the county authorities to purchase the bonds as an investment for the permanent school fund in case the bonds were legal and valid obligations. A dispute having arisen between said board and the county with respect to the validity of said bonds, the matter was submitted to the district court of Lancaster county for adjudication, upon an agreed statement of the facts, under the provisions of section 567 of the Code of Civil Procedure. From the decision and judgment holding the bonds legal and valid the state has prosecuted error.
The single question presented by the record is whether the notice calling the election at which the proposition to issue the bonds was voted upon was published as required by the statute. The notice was inserted in four successive weekly issues of the Republican, and also in the Western News Democrat, newspapers published at Valentine, in the county of Cherry. In the Republican the first publication was October 14, 1898, and, on the day preceding, the election notice first appeared in the Western News Democrat. The election was held on November 8, or before the expiration of the four full calendar weeks after the first publication of the notice. The statute, section 27, article 1, chapter 18, Complied Statutes, declares inter alia: "The mode of submitting questions to the people for any purpose authorized by law shall be as follows: The whole question, including the sum desired to be raised, or the amount of the tax desired to be levied, or the rate per annum, and the whole regulation, including the time of its taking effect, or having operation, if it be of a nature to be set forth, and the penalty of its violation, if there be one, is to be published for four weeks in some newspaper published in the county." The provisions quoted govern and control the submission, to the vote of the electors of Cherry county, of the proposition to issue the bonds in question. Of this there is no room for doubt. The present controversy arises over the meaning of the words in the portion of the section quoted above, "for four weeks in some newspaper published in the county," the contention of the county attorney being that the publication is complete upon the distribution of the newspaper containing the fourth weekly insertion of the notice, while the attorney general argues that the first publication must be made at least four weeks, and the last insertion one week, prior to the election; in other words, the notice is incomplete until four weeks have elapsed after the first publication. We are not aware that the precise point ever has been adjudicated by this court, although questions of a somewhat similar nature have been passed upon.
In Lawson v. Gibson, 18 Neb. 137, 24 N.W. 447, the court construed section 497 of the Code of Civil Procedure, which provides that notice of the sales of lands upon execution shall be given "for at least thirty days before the day of sale, by advertisement in some newspaper printed in the county," etc., and it was held that the statute was not satisfied by one insertion of the notice at least thirty days before the day of sale, but that the word "for" in the section means "during, " and that the notice is required to be published during the thirty days. Whitaker v. Beach, 12 Kan. 492, cited in the opinion in that case, fully sustains the doctrine.
In State v. Cornell, 54 Neb. 647, 75 N.W. 25, the word "for" in the phrase "for each fiscal year," in section 20, chapter 28, Compiled Statutes, was construed to be the equivalent of the word "during."
Section 2, chapter 50, Compiled Statutes, declares that no action shall be taken upon an application for a license to sell intoxicating liquors "until at least two weeks' notice of the filing of the same has been given by publication in a newspaper published in said county having the largest circulation therein." In Pisar v. State, 56 Neb. 455, 76 N.W. 869, the notice of an application for a saloon license was published for two successive weeks, and the license was granted the fourteenth day after the first publication. In that case, in an opinion by IRVINE, C., carefully reviewing the authorities, it was held that action could be taken only after the expiration of two weeks, and that the license was prematurely granted and was void.
These three decisions are quite in point upon the question now under consideration. The construction placed upon the statute by the county attorney wholly ignores the word "for" in section 27 under consideration. That word was inserted for a purpose, and in construing statutes it is a cardinal rule to give, if possible, force and effect to each sentence and word contained therein. Tested by this rule, what meaning should be placed on the preposition "for"? Manifestly it is equivalent to the word "during," and such is its general signification. Had the lawmakers intended that notice of the proposition submitted to a vote of the people of a county should be complete upon the fourth weekly insertion in the newspaper, they doubtless would have expressed such purpose by omitting from the statute the word "for," or by the use of some appropriate language which would more clearly express what was in the legislative mind. The statute is not complied with unless the notice is published in a newspaper during four weeks preceding the election. Four weeks must intervene between the first publication and the election. This construction is not only in line with the decisions of this court, of which mention is made above, but is fortified by the adjudications of other courts in passing upon a similar question.
The statute of New York requiring that notice to the creditors of one insolvent to show cause must be published "for six weeks successively" was under consideration in People v. Judges of Yates Common Pleas, 1 Wend. 90, and it was determined that the publication must be made for six whole weeks,--that is, during forty-two days. To the same effect is Bunce v. Reed, 16 Barb. 347.
The section of the Code of Civil Procedure of New York (section 440) requiring that the service of summons by publication shall be made for such length of time as may be deemed reasonable, not less than once a week for six weeks, was construed in Market Nat. Bank v. Pacific Nat. Bank, 89 N.Y. 397, and the court held that the service was not complete until the expiration of at least...
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