Township of Midland v. County Board of Gage County

• Decision Date: 20 September 1893
• Docket Number: 3452
• Citation: Township of Midland v. County Board of Gage County, 37 Neb. 582, 56 N.W. 317 (Neb. 1893)
• Parties: TOWNSHIP OF MIDLAND, APPELLEE, v. COUNTY BOARD OF GAGE COUNTY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

56 N.W. 317

37 Neb. 582

TOWNSHIP OF MIDLAND, APPELLEE, v. COUNTY BOARD OF GAGE COUNTY ET AL., APPELLANTS

No. 3452

Supreme Court of Nebraska

September 20, 1893

APPEAL from the district court of Gage county. Heard below before BROADY, J.

AFFIRMED.

Hazlett & Bates and Brown & Craig, for appellants:

The mistake made by the board of supervisors in substituting the word "township" in the call and notice of election for the words "county of Gage" contained in the petition of the freeholders, was an immaterial clerical error, which could have had no effect upon the result of the election, and could not, consequently, effect its validity. Ch. 45, sec. 14, Comp. Stats., gave the township the right to aid any railroad in constructing its line into the city of Beatrice, Gage county, even though it should not enter the township. (State v. Babcock, 23 Neb. 179; Quincy, M. & P. R. Co. v. Morris, 84 Ill. 410; St. Joseph & D. C. R. Co. v. Buchanan County Court, 39 Mo. 485; Walker v. Cincinnati, 21 Ohio St. 14; Council Bluffs & St. J. R. Co. v. Otoe County, 16 Wall. [U.S.] 667; Bell v. Mobile & O. R. Co., 4 Wall. 598.) If any taxpayer was deceived he must not only show it, but must act promptly in protesting, and not wait until the work is completed and thus secure all the benefits while escaping his obligation to pay. (Brown v. Merrick County, 18 Neb. 355, and cases cited.) The sale and transfer by the Nebraska company of its railroad, constructed and to be constructed, and the appurtenant franchise, to the Kansas company, had no effect upon the contract for the issue of the bonds. (Morawetz, Corporations [2d ed.] secs. 1004 1010; Livingston County v. Portsmouth Bank, 128 U.S 102; New Buffalo v. Iron Co., 105 U.S. 73; Harter v. Kernochan, 103 U.S. 562; Bates County v. Winters, 112 U.S. 325; Menasha v. Hazard, 102 U.S. 81; Scotland County v. Thomas, 94 U.S. 682; Town of East Lincoln v. Davenport, 94 U.S. 801; Wilson v. Salamanca, 99 U.S. 499; Henry County v. Nicolay, 95 U.S. 619; Empire v. Darlington, 101 U.S. 87; Nugent v. Supervisors, Putnam County, Ill., 19 Wall. [U.S.] 241.)

Griggs Rinaker & Bibb, contra.

OPINION

RAGAN, C.

This is an action in equity brought by the township of Midland, in the county of Gage, to restrain the board of supervisors and county clerk of said Gage county from issuing and delivering certain bonds of said township to the Chicago, Kansas & Nebraska Railroad Company, or to any corporation or person. The district court, on the hearing of the case, made the injunction perpetual. The board of supervisors and county clerk, and the Chicago, Kansas & Nebraska Railway Company, who had been made a party defendant on its own motion, and filed an answer in the case, appealed from the decree of the district court.

The Chicago, Kansas & Nebraska Railroad Company will be hereinafter designated the "railroad company," and the Chicago, Kansas & Nebraska Railway Company will be hereinafter designated as the "railway company."

We have reached the conclusion that the decree of the district court should be affirmed for the following reasons:

1. The petition presented to the board of supervisors by the fifty freeholders of Midland township prayed the board to call an election in said township and submit to the electors thereof the question whether there should be issued to the railroad company $ 4,000 of bonds of the township to aid the railroad company in constructing its railroad into and through said county of Gage. The proposition, as actually submitted by the supervisors to the electors of the township, and voted upon by them, was whether the township would authorize the board of supervisors to issue the bonds of said township to aid the railroad company in constructing its railroad into and through said township. Here was a variance between what was asked for by the petition and what was submitted and voted upon by the electors of the township. The appellants say that this variance was a mistake or accident on the part of the supervisors, and that the township electors understood at all times that the road was not to be built through the township. We do not know how this may be. There is no such evidence in the record and we have no right to indulge in such a presumption. We only know that the electors voted to issue bonds to aid in the construction of the railroad into and through their township; and the deduction logically follows that if the road was not built there, the electors of the township did not agree or consent or promise the donation of the bonds.

The statute regulating the voting of bonds by townships, counties, cities, etc., to aid in the construction of works of internal improvement, should be strictly construed in favor of the electors. A donee claiming bonds by virtue of an election and vote of the people, must show a literal compliance with the law and the terms and conditions of the proposition submitted to and voted on by the electors. The courts will indulge in no presumptions or constructions in order to enable the claimant of such donation to sustain the same. He must make out for himself, through the law and record, an unambiguous right to the donation he claims. The freeholders who signed the petition praying the board of supervisors to call an election and submit to the township electors the proposition to aid in constructing the railroad through the county may have been willing that a tax should be levied on the property of the township for that purpose, and it is a fair inference that they at least understood the railroad would not touch their township. But this township, for aught we know, may have had five hundred or five thousand electors, two-thirds of whom, if voting, must agree to the donation to make it valid. So far as we are advised by the record, two-thirds of them did agree to aid in the construction of the improvement, but with the condition that it should be built through their township. It may be that these electors read the notices of the election published in the newspapers and posted up in the township. The presumption is that they did so. The statement in these notices that the road was to be built through their township may have controlled their votes, gained their consent or the consent of a sufficient number of them to decide the election in favor of the donation. The fact that the building of the road in their township would add to the taxable property therein, may have influenced the vote. It is idle to indulge in any conjectures. The question is: Did the electors of this township vote to donate bonds to aid in the construction of this railroad anywhere in Gage county outside of that township? The answer must be "no."

2. The petition presented to the board of supervisors by the freeholders of the township, prayed the calling therein of an election and the submission to the electors of a proposition to aid the railroad company. The proposition submitted to the electors was to aid the railroad company. The electors voted to aid the railroad company and authorized the board of supervisors, on the completion of the improvement by the railroad company, to issue the bonds of the township and deliver them to the railroad company. Yet this railroad company did not complete the improvement. It sold out its property and franchises, and its vendee built the improvement and now claims the bonds. This will not do. If one vendee can claim this aid successfully, any vendee of the railroad company can.

The record discloses...