Stern v. City of Fargo

• Decision Date: 19 June 1909
• Citation: 122 N.W. 403,18 N.D. 289
• Court: North Dakota Supreme Court

122 N.W. 403

18 N.D. 289

MAX STERN v. CITY OF FARGO, PETER ELLIOTT, AS MAYOR OF THE CITY OF FARGO, AND N. C. MORGAN, AS CITY AUDITOR OF THE CITY OF FARGO

Supreme Court of North Dakota

June 19, 1909

Appeal from District Court, Cass county; Pollock, J.

Action by Max Stern to enjoin the city of Fargo, and the Mayor and Auditor thereof, from issuing bonds voted for the construction of a pumping station and electric light plant. Judgment for defendants, and plaintiff appeals.

Reversed with directions to enter a decree in accordance with a prayer of the complaint.

Reversed.

E. H Wright, for appellant.

Substantial compliance with law essential to a valid issue of municipal bonds. Harris on Municipal Bonds, 28.

The submission of two propositions in such form as to preclude a vote on each, renders the election void. People v Baker 23 P. 364; City of Denver v. Hagues 63 P. 311; State v. Budge, 14 N.D. 532; 105 N.W. 724. Wilkins v. Waynsboro, 116 Ga. 359; 42 S.E. 767; McBryde v. City of Montesano, 34 P. 559; Truelson v. Duluth, 63 N.W. 714; Neelburn v. Cuthburt, 23 S.E. 206; Cain v. Smith, 44 S.E. 5; Supervisors v. Ry. Co., 21 Ill. 337; Gray v. Mount, 45 Ia. 591; Hensly v. City of Hamilton, 36 Ohio Cir. Ct. R. 201.

W. C. Resser, City Att'y and Engerud, Holt & Frame, for Respondent.

If the purpose of the bond issue is single, and the enterprise a unit, although evolving two results, waterworks and electric light plant, the practice is upheld. Truelson v. City, 63 N.W. 714; Woodbridge v. City, 59 N.W. 296; State ex rel. v. Caffery, 22 So. 756; Heilburn v. Cuthburt, 23 S.E. 206; Ryan v. Orbison, 7 Ohio Cir. Ct. 30; Coleman v. Town, 47 So. 703; Kemp v. Hazelhurst, 31 So. 908.

A mark on a ballot not violating the spirit of the election law, does not nullify the vote. Howser v. Pepper, 8 N.D. 484; 79 N.W. 1018; Perry v. Hackney, 11 N.D. 148; 90 N.W. 483.

SPALDING, J. Morgan, C. J., not participating.

OPINION

SPALDING, J.

Section 130 of the Constitution of this state requires the legislative assembly to restrict the powers of municipal corporations as to levying taxes and assessments, borrowing money and contracting debts, and prohibits the diversion of money raised by taxation, loan, or assessment for any purpose, to any other purpose, except by authority of law. Section 183 provides that the debt of any municipality shall never exceed 5 per centum upon the value of the taxable property therein, but permits any incorporated city, by a two-thirds vote, to increase such indebtedness 3 per cent. on such assessed valuation beyond said 5 per cent. limit, and provides that any incorporated city may become indebted in any amount not exceeding 4 per centum of such assessed valuation, without regard to the existing indebtedness of such city, for the purpose of constructing or purchasing waterworks for furnishing a supply of water to the inhabitants of such city, or for the purpose of constructing sewers, and for no other purpose whatever.

The legislative assembly, in chapter 30 of the Political Code, commencing with section 2632, Rev. Codes 1905, has provided for the organization and incorporation of cities. Article 4 of said chapter, commencing with section 2678, enumerates the general powers of city councils in 78 paragraphs or articles. Paragraph 5 gives it power to borrow money on the credit of the corporation, for corporation purposes, and to issue bonds therefor in such amounts and forms, and on such conditions, as it shall prescribe, and provides that no such city shall become indebted in any manner, or for any purpose, to an amount, including existing indebtedness, exceeding 5 per cent. of the taxable property therein. Then follows the proviso, contained in the section of the Constitution, quoted, relating to an increase of such indebtedness, on a two-thirds vote, of 3 per cent., and the further proviso quoted relating to indebtedness in any amount, not exceeding 4 per cent., for the purpose of constructing or purchasing waterworks, with the additional power to issue bonds therefor, and the further proviso that the city, before or at the time of issuing any of the bonds mentioned, or incurring the indebtedness for which the same are to be issued, shall provide for a direct annual tax sufficient to pay the interest on such debt or bonds when it falls due, and to pay and discharge the principal when the same becomes due, and that such provisions shall be irrepealable until such debt is paid. The final paragraph of the section provides "further that none of the hereinbefore mentioned bonds shall be issued, either for special or general purposes, except as by law otherwise provided unless at an election, after twenty days' notice in a newspaper published in the city stating the purpose for which such bonds are to be issued, and the amount thereof, the legal voters of said city, shall, by a majority vote, determine in favor of issuing such bonds." Paragraph 11 of section 2678 gives the council power to provide for the lighting of streets, and to provide for the furnishing of lights to the inhabitants of the city, and paragraph 75 to purchase and erect, lease, rent, manage, and maintain any system, or part of system, of waterworks, hydrants, and supply of water, telegraphing, fire signals, or fire apparatus that may be of use in the prevention and extinguishment of fires, and to pass all ordinances, penal or otherwise, that shall be necessary for the full protection, maintenance, management, and control of the property so leased, purchased, or erected.

The city council of Fargo passed, and the mayor approved, on the 1st day of March, 1909, a resolution as follows:

"Be it resolved, by the city council of the city of Fargo:

"That, at the annual election, for elective officers for the city of Fargo, to be held on Monday, the 5th day of April, 1909, there shall be submitted to the legal voters of said city, the question, whether or not one hundred thousand dollars ($ 100,000.00), or such part thereof as may be required, in bonds of the said city, in denominations of one thousand dollars ($ 1,000.00), each, to mature as follows, to wit: Thirty thousand dollars ($ 30,000.00) thereof in ten years from date of issue; thirty-five thousand dollars ($ 35,000.00) thereof in fifteen years from date of issue and thirty-five thousand ($ 35,000.00) residue thereof in twenty years from date of issue, and to bear interest at the rate of four per centum per annum, payable semi-annually, shall be issued by the said city of Fargo for the sole purpose of defraying the cost of building and constructing a new waterworks pumping station, and installing therein a new high duty pump and necessary steam boilers and other needed machinery and appliances, and for building, constructing and equipping of a filtration plant in connection with said pumping station, and for paying such portion of the cost of constructing a water main of sufficient capacity, extending from the present location of the waterworks pumping station in Island Park to the selected location for the new pumping station in block two (2) of South Park addition to the city of Fargo, over and above such part of the cost thereof as can be assessed against the property along the route of the said water main, for furnishing to the inhabitants of the said city of Fargo an adequate and pure supply of water; and for the purpose of installing an electric light plant in connection with the said pumping station for furnishing street and other lights and power.

"That the city auditor be, and is hereby directed to have printed on the regular ballots for such annual election the following: 'For issuing bonds for waterworks, filtration and electric light plants and extensions' and 'Against issuing bonds for waterworks, filtration and electric light plants and extensions.'

"That the city auditor be and he is hereby directed to give legal notice that such question will be submitted to the legal voters of the said city of Fargo at such annual election, by publication of this resolution in the official newspaper of the city of Fargo and in the other daily newspapers of the said city, for twenty days next preceding the said election, as required by law."

And the city auditor, in the notice for the annual election of the city of Fargo, included the following notice:

"Notice is hereby given that the annual election in and for the city of Fargo, Cass county, North Dakota, will be held on Monday, the fifth day of April, 1909, at the following polling places in the several wards of the city, to wit: * * *

"Said election will be held for the election of one alderman in each of the seven wards of the city, and there will also be presented to the electors of the city for their votes the proposition of the issue by the city, of $ 100,000.00 four per cent. bonds, or such part thereof as may be required, for the construction of a new waterworks pumping station and filtration plant, etc., and for the purpose of installing an electric lighting plant in connection with said pumping station, which proposition is more fully set forth in a certified copy of the resolution adopted by the city council, which is published elsewhere in this issue of this newspaper."

The question so submitted received more than a majority of the votes cast on the subject of bonds at such election, and thereafter the city council passed, and the mayor approved an ordinance providing for the issuance of such bonds. The ballot contained the question, "Shall the city of Fargo issue $ 100,000.00 or such part thereof as may be required, in bonds of said city?" reciting the denominations, dates of payment, rate of interest, and the purposes stated in the resolution. The appellant brought this action, setting out these facts, and...