Washington County, Neb., v. Williams

• Decision Date: 28 October 1901
• Docket Number: 1,486.,1,533
• Citation: 111 F. 801
• Parties: WASHINGTON COUNTY, NEB., v. WILLIAMS. BLAIR et al. v. WASHINGTON COUNTY, NEB., et al.
• Court: U.S. Court of Appeals — Eighth Circuit

111 F. 801

WASHINGTON COUNTY, NEB., v. WILLIAMS.

BLAIR et al. v. WASHINGTON COUNTY, NEB., et al.

Nos. 1,533, 1,486.

United States Court of Appeals, Eighth Circuit.

October 28, 1901

John L Kennedy and F. S. Howell (Herman Aye, on the briefs), for Washington county.

W. J Courtright and F. Dolezal (B. T. White and J. B. Sheean, on the briefs), for J. Bertram Williams, De Witt C. Blair, and others.

These are two cases, one at law and the other in equity, which in the main involve the same questions, and have been argued and briefed together. The controversy arises out of the following facts:

On July 1, 1869, Washington county, in the state of Nebraska executed and delivered to the Sioux City & Pacific Railroad Company 149 obligations, in the following form:

'State of Nebraska. Washington County.

'Five Hundred Dollar R.R. Bond.

$500.00

'Be it known, that the county of Washington, in the state of Nebraska, acknowledges itself to owe and to stand indebted to the Sioux City & Pacific Railroad Company in the sum of five hundred dollars, which sum the board of county commissioners of said county, in the name and on behalf of the said county, hereby promises to pay to said Sioux City & Pacific Railroad Company or bearer, at the office of the county treasurer of said county, with interest at the rate of seven per cent. per annum, which principal and interest are to be raised and paid by an annual levy of a tax of one mill on the dollar on the entire taxable property in said county, and the sum to be raised by taxation is to be applied first in the payment of the interest on this and 149 other bonds of the same date and amount, and next in the payment of the principal sum and annually accruing interest, until the whole of the principal and interest shall have been paid and extinguished, and which payments are to be made on the first day of July next following the date hereof, and annually thereafter on the first day of July. This obligation is one of a series numbered from one (1) to one hundred and fifty (150), each for the sum of $500, and in the aggregate amounting to $75,000, issued by the said county of Washington to aid in the construction of the Sioux City and Pacific Railroad from a point on the Missouri river in Washington county aforesaid, and running thence westerly through said county, forming a connection with the Union Pacific Railroad at or near Fremont, in Dodge county, in accordance with a vote of the electors of said county of Washington at an election held on the ninth day of June, 1868, for the purpose of taking a vote on the proposition to aid the said railroad company in the construction of said railroad by the board of county commissioners of said county executing and delivering to said railroad company the bonds of said county calling for the payment of $75,000, with interest at the rate of seven per cent. per annum, and to be paid by an annual levy of a tax of one mill on the dollar of the entire taxable property of said county until such time as the amount thus raised will extinguish the whole amount of the principal and interest and accruing interest, which proposition was submitted and adopted under the provisions of the ninth chapter of the Revised Statutes of the State of Nebraska. The said railroad having been built by the said railroad company after the adoption of said proposition as contemplated therein, and within the time therein mentioned, this bond, with the others of the series above mentioned, is issued in pursuance thereof, as well also as under the provisions of an act of the legislature of the state of Nebraska approved February 15, 1869, entitled 'An act to enable counties, cities and precincts to borrow money on their bonds, or to issue bonds to aid in the construction or completion of works of internal improvement in this state, and to legalize bonds already issued for such purposes.'

'In testimony whereof, we, the board of county commissioners of said county of Washington, have hereunto set our hands and caused the seal of said county to be affixed on this first day of July, A.D. 1869.

'(Seal of Washington County . . . Alonzo Perkins,

Commissioners' Court, . . . Watson Tyson,

Nebraska.). . . . Commissioners.

'P. N. Besmer, County Clerk.'

It appears to have been the intention of the county to issue 150 of such obligations, but, as a matter of fact, only 149 were issued, making the aggregate amount of the indebtedness incurred $74,500.

The ninth chapter of the Revised Statutes of Nebraska, which is referred to in said obligations, was an act passed by the legislative assembly of the territory of Nebraska on January 11, 1861. Laws Neb. 1860-61, pp. 146 to 153, inclusive. That act contained, in part, the following provisions:

'Sec. 24. The said commissioners shall have power to submit to the people of the county, at any regular or special election, the question whether the county will borrow money to aid in the construction of public buildings; the question whether the county will aid, or construct any road or bridge, or to submit to the people of the county any question involving an extraordinary outlay of money by the county; and said commissioners may aid any enterprise designed for the benefit of the county as aforesaid, whenever a majority of the people thereof shall be in favor of the proposition as provided in this section.'

'Sec. 26. The mode of submitting the questions to the people, contemplated by the last two sections, shall be the following: The whole question, including the sum desired to be raised, or the amount of 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 at least four weeks in some newspaper published in the county. If there be no such newspaper the publication is to be made by being posted up in at least one of the most public places in each election precinct in the county, and in all cases the notices shall name the time when such question will be voted upon, and the form in which the question shall be taken, and a copy of the question submitted shall be posted up at each place of voting during the day of election.

'Sec. 27. When the question submitted involves the borrowing or expenditure of money, the proposition of the question must be accompanied by a provision to lay a tax for the payment thereof, in addition to the usual taxes under section sixteen, of this act; and no vote adopting the question proposed shall be valid, unless it likewise adopt the amount of tax to be levied to meet the liability incurred.

'Sec. 28. The rate of tax levied in pursuance of the last four sections of this act, shall, in no case, exceed more than three mills on the dollar, of the county valuation in one year. When the object is to borrow money to aid in the erection of public buildings, as provided, the rate shall be such as to pay the debt in ten years. When the object is to construct or aid in constructing any road or bridge, the annual rate shall not exceed one mill on a dollar of the valuation; and any special tax or taxes levied in pursuance of this act, becoming delinquent, shall draw the same rate of interest as ordinary taxes levied in pursuance of the revenue law of this territory.

'Sec. 29. The said commissioners being satisfied that the above requirements have been substantially complied with, and that a majority of the votes cast are in favor of the proposition submitted, shall cause the same to be entered at large upon the book containing the record of their proceedings; and they shall then have power to levy and collect the special tax in the same manner that the other county taxes are collected. Propositions thus acted upon can not be rescinded by the board of county commissioners.

'Sec. 30. Money raised by the county commissioners in pursuance of the last six sections of this act, is specially appropriated and constituted a fund distinct from all others in the hands of the county treasurer, until the obligation assumed is discharged.'

While this law was in force, and on June 9, 1868, an election was held in conformity therewith for the purpose of taking the sense of the people on a proposition to aid the Sioux City & Pacific Railroad Company in the construction of its road from a point on the Missouri river to a junction with the Union Pacific Railroad at or near Fremont, Neb.; and at such election the proposition to aid in the construction of such road in the manner and to the amount indicated in the obligation above quoted was duly approved, and such aid was authorized by the people. While said road was in process of construction, and after it had been for the most part completed, the legislature of the state of Nebraska, on February 15, 1869, passed another act (Laws Neb. 1869, p. 92), entitled 'An act to enable counties, cities and precincts to borrow money on their bonds, or to issue bonds to aid in the construction or completion of works of internal improvement in this state, and to legalize bonds already issued for such purpose. ' This act contained the following provisions:

'Section 1. Be it enacted by the legislature of the state of Nebraska, that any county or city in the state of Nebraska is hereby authorized to issue bonds to aid in the construction of any railroad, or other work of internal improvement, to an amount to be determined by the county commissioners of such county or the city council of such city, not exceeding ten per centum of the assessed valuation of all taxable property in said county or city, provided the county commissioners, or city council, shall first submit the question of the issuing

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