Tukey v. City of Omaha

• Decision Date: 17 March 1898
• Citation: 54 Neb. 370,74 N.W. 613
• Parties: TUKEY v. CITY OF OMAHA ET AL.
• Court: Nebraska Supreme Court

54 Neb. 370

74 N.W. 613

TUKEY

v.CITY OF OMAHA ET AL.

Supreme Court of Nebraska.

March 17, 1898.

Syllabus by the Court.

1. When the governing body of a municipality is authorized by a vote of the people, and only thereby, to incur a debt for a particular purpose, such purpose must be strictly followed, and the terms of the authority granted must be strictly and fully performed.

2. A proposition was submitted to the electors of a city, and by them adopted, to issue bonds for the purpose of securing a site for a market place, and erecting thereon a market house. The proposition contemplated the purchase of land for that purpose. Held, that the erection of a market house on land already owned by the city, and used as a public park, was a substantial departure from the terms of the vote, and was unauthorized.

3. A resident taxpayer, showing no private interest, may maintain a suit to restrain the governing body of a municipality from an alleged disposition of the public money, or the illegal creation of a debt which must be paid by taxation.

Appeal from district court, Douglas county; Hopewell and Ferguson, Judges.

Action by one Tukey against the city of Omaha and others for an injunction. From a judgment for defendants, plaintiff appeals. Affirmed.Wm. J. Connell and Estabrook & Davis, for appellant.

Geo. W. Doane, for appellees.

IRVINE, C.

There is in the city of Omaha a tract of land, occupying one city block, and known as “Jefferson Square.” This has for many years been used as a public park, and a considerable sum of money has been expended in improving it, and adapting it to such use. In 1893, by ordinance, the mayor and council submitted to the electors of the city a proposition for the issuing of bonds “to pay the cost of securing a site for a market place, and erecting a market house thereon.” The proposition was carried, and thereafter, by another ordinance, Jefferson Square was designated as the site for the erection of a market house, and a resolution was passed directing the board of public works, under the direction of the city engineer, to clear and grade the square preparatory to the erection of the market house. These officers were proceeding to comply with the resolution, when the plaintiff, showing no interest other than a taxpayer of the city, and a citizen thereof, brought this action to restrain the city and the officers named in the resolution from entering upon the square for the purpose indicated. On final hearing the injunction granted at the commencement of the suit was made perpetual, and the defendants appealed.

An important question involved in the record, and one which has received a masterly discussion in the briefs, relates to the character of the city's title to the land, and whether it has been charged with a perpetual use as a park, so that it is not within the authority of the city to divert it, under any circumstances, to a different use. While the district court seems to have passed on that question, it seems to us that it cannot be logically reached until certain other questions are disposed of; and the conclusion we have reached on these disposes of the case without a decision of the underlying question. No opinion is therefore expressed on the broad question referred to.

As the city charter stood at the time of the proceedings complained of, the mayor and council had power “to erect and establish market houses, and make market places, * * * and * * * locate such market houses and market places on any streets, alleys, or public grounds, or on any land purchased for such purpose.” Comp. St. 1893, c. 12a, § 62. It was evidently under this grant that the city undertook to act. The title of the ordinance submitting the proposition was as follows: “An ordinance providing for submitting to the legal electors of the city of Omaha at a general election to be held in said city on the seventh of November, 1893, the question of issuing bonds of the city of Omaha to the amount of two hundred thousand dollars to pay the cost of securing a site for a market place and erecting a market house thereon.” The proposition voted on, as embodied in the ordinance, was as follows: “Shall bonds of the city of Omaha in the sum of two hundred thousand dollars be issued for the purpose of paying the cost of securing a site for a market place, not less than a block in size, and erecting a market house thereon; such market place to be on such block in said city north of Leavenworth street, south of Cuming street and east of Twentieth street as may be designated by the mayor and council by ordinance after advertisement for bids not less than four weeks; the said market house to be erected thereon to be in size at least two hundred and sixty-four feet by sixty feet, two stories in height; the lower story to be devoted to market house purposes, and the second story to contain a public assembly hall; the said bonds to run not more than twenty years and to bear interest payable semiannually at a rate not to exceed five per cent. per annum, with coupons attached; the said bonds to be called ‘Market House Bonds,’ and not to be sold for less than par; the proceeds of said bonds to be used for no other purpose than paying the cost of securing such site and erecting such market house; the said bonds to be issued from time to time as may be required during the years 1894 and 1895.” The authority of the city government in the use and expenditure of the fund so provided was limited and strictly defined by the terms of the proposition so ratified by vote...