Whitcomb v. Reed

• Decision Date: 13 April 1888
• Citation: 24 Neb. 50,37 N.W. 684
• Parties: WHITCOMB ET AL. v. REED ET AL.
• Court: Nebraska Supreme Court

24 Neb. 50

37 N.W. 684

WHITCOMB ET AL.

v.REED ET AL.

Supreme Court of Nebraska.

April 13, 1888.

Syllabus by the Court.

Prior to the act of 1887 in a county under the township system of government the respective towns, and not the county board of supervisors, were vested with the power, and charged with the duty, of building and repairing the bridges in such towns, and the letting of contracts therefor.

Appeal from district court, Saline county; BROADY, Judge.

Action brought by Edward Whitcomb and others, tax-payers, against D. T. J. Reed and others, members of the board of supervisors of Saline county, to enjoin the defendants from letting certain bridge contracts. Judgment was rendered dismissing the action, and the plaintiffs appeal.Abbott & Abbott, for appellants.

J. C. Smith, for appellees.

COBB, J.

This cause comes up on appeal from the judgment of the district court of Saline county in dismissing the action which was brought by the plaintiffs, certain tax-payers, who sue as well for themselves as for all other taxpayers of said county, against the defendants, who were the members of the board of supervisors of said county. Saline county is, and has been since 1883, under township government. The petition alleges “that said county board has, contrary to the statute, assumed authority and control over all the roads and bridges of the county, and has unlawfully assumed the power to build, construct, and repair any and all roads, bridges, and culverts in said county, and is proceeding to let contracts therefor, in utter disregard to the power and authority of the several town boards of said county; that, in pursuance of such illegal and usurped authority, the said county board did, at a session of said board held at Wilbur, the county-seat of said county, on the 6th day of July, 1885, resolve and determine, by vote of said board, to proceed to build the following bridges in said county.” Here follows a list of 12 bridges scattered throughout, and situated in, the several towns of said county, estimated to cost from $100 to $2,400 each. “And the plaintiff alleges that no emergency has arisen within any of said towns requiring the action of the county board relative to the roads or bridges therein; nor has any one of said towns exhausted its statutory resources in that behalf; that in fact several of said towns have taken no action whatever towards raising a road and bridge fund. And the said county board did, in pursuance of said usurped and illegal authority, by resolution passed by vote of said board at said meeting, instruct and order the county clerk of said county to advertise for bids for the construction of said bridges, said bids to be made to said county on or before the 25th day of August, 1885. And plaintiff alleges and charges the fact to be that the said county board threatens, intends to, and will, unless restrained by the order of this court, proceed to receive such bids, and let the contract for the building of said bridges by the said county board alone, and make the costs thereof a charge against said county, entirely ignoring the several town boards of the towns wherein said bridges are situated. And the plaintiffs allege that the above estimates of the costs of said bridges has been obtained by the plaintiffs from persons who are well informed in the matter of bridge building in this county, and the plaintiffs believe such information to be correct; and that the aggregate cost of said bridges to the county will not be less than $7,000, thereby imposing a great and burdensome indebtedness upon said county, and which will result in a great and irreparable injury to the plaintiffs, and to all of the tax-payers of said county.” With prayer for injunction and relief. A temporary order of injunction was issued, and defendants answered in the action, admitting the formal parts of said petition,--that the said county is under township organization and government, that defendants are the duly qualified and acting board of supervisors of said county, and that the plaintiffs are residents of and tax-payers of said Saline county,--but denying “that as such board they ‘have assumed the power to build, construct, and repair any and all roads, bridges, and culverts in said county, and are proceeding to let contracts therefor;’ but admit that as such board they have advertised for bids for the erection of the several bridges mentioned in plaintiffs' petition, and will, if not restrained from so doing by process of law, let contracts for the erection of the same. They allege that each of said bridges will, if constructed as intended by these defendants, be upon a public road. They deny that the said several bridges will cost the sum mentioned by plaintiffs, but allege that the same will cost the sum of $5,400, and no more, said sum being much less than the said bridges would cost if built by the several townships of said county. They allege that it was and is the purpose and intention of defendants, as such board, to erect each and all of said bridges entirely from county funds, to-wit, from the bridge funds of said county. They allege that defendants, as such board, have ample means under their control to erect each and all of said bridges. They deny that in the matter of the intended erection of said bridges they, as such board, were in any manner acting contrary to or without authority of law,” etc. At the hearing before the district court a judgment was rendered dismissing the action; but upon notice of appeal being given, and a supersedeas bond filed by the plaintiffs, which said bond was approved by the clerk of said district court, thereupon it was ordered by the said court that the injunction theretofore issued in said cause be continued until the appeal be passed upon in the supreme court.

The question here presented is whether in a county under the township system of government, the county board of supervisors possesses the power to enter upon and carry on a general system of ordinary bridge building throughout the several towns of the county. At the date of the passage of the several acts which, although altered and amended in various particulars, yet maintaining most of their original provisions, constitute chapters 18 and 78 of the Compiled Statutes of this state, township organization or...