Wullenwaber v. Dunigan

• Decision Date: 22 December 1890
• Citation: 47 N.W. 420,30 Neb. 877
• Parties: NICHOLAS WULLENWABER ET AL., APPELLEES, v. MICHAEL DUNIGAN ET AL., APPELLANTS
• Court: Nebraska Supreme Court

47 N.W. 420

30 Neb. 877

NICHOLAS WULLENWABER ET AL., APPELLEES, v. MICHAEL DUNIGAN ET AL., APPELLANTS

Supreme Court of Nebraska

December 22, 1890

APPEAL from the district court for Seward county. Heard below before NORVAL, J.

AFFIRMED.

George W. Post, and D. C. McKillip, for appellants, cited: Mechem Agency, secs. 714, 716, 743 and notes, 747 and note, 750; Montgomery S. R. Co. v. Mathews, 77 Ala. 357; Hilliard, Inj., 295-6; Helms v. McFadden, 18 Wis 201; 2 Whart., Ev., secs. 797, 932; Perkins v Lougee, 6 Neb. 223; Exparte Fisher, 18 Wend. [N. Y.], 609; Long v. Woodman, 58 Me. 49; Graves v. Hedges, 58 Pa. 540; Ranney v. People, 22 N.Y. 417; Com. v. Mishey Brenneman, 1 Rawle [Pa.], 311; 1 Woods, R. Law, sec. 33, and p. 81, secs. 112-13-14, 120; Martin v. Pensacola R. Co., 8 Fla. 370; Carlisle v. Evansville R. Co., 13 Ind. 477; Miss. R. Co. v. Cross, 20 Ark. 443; Holbrook v. O'Berne, 9 N. W. Rep., 291; B. C. R. & M. R. Co. v. Palmer, 42 Iowa 228; First Nat'l Bk. of Cedar Rapids v. Hurford, 29 Id., 585; 1 Wood, R. R., 110, 111, note 6, 112 to 120; 1 Parsons, Cont., 71; C. R. & M. R. Co. v. Boone Co., 34 Iowa 51; State v. Lake City, 25 Minn. 404; Platteville v. Galena, 43 Wis. 493; People v. Klokke, 92 Ill. 134; Burns v. Campbell, 71 Ala. 271; Ewall's Evans, Agency, 64, 70, 71; 4 Coke, Institutes, 317; Story, Agency, secs. 239, 240; Townsend v. Lamb, 14 Neb. 324; Platteville v. R. Co., 43 Wis. 493; E. L. & R. R. Co. v. Garrett, 52 Tex. 133; B., & M. L. R. Co. v. Brooks, 60 Me. 568; 6 Am. & Eng. Ency. L., 738, 895; 1 Washb., Real Prop. [5th Ed.], 57; Gage v. Scales, 100 Ills., 218, 221, 895; 6 International Ency., 885; M. & S. R. Co. v. Matthews, 24 Am. & Eng. R. Cas., 9; 1 Redfield, Railways [5th Ed.], 172-3; Franklin Glass Co. v. Alexander, 9 Am. Dec., 92; Hanover Junc. R. Co. v. Haldeman, 82 Pa. 36; Caley v. P. & C. R. Co., 80 Id., 363; Kotsenbader v. Peters, Id., 438; Lippincott v. Whitman, 83 Id., 244; Brownlee v. R. Co., 18 Ind. 68; Hardy v. Merriweather, 14 Id., 203; Anderson v. O. R. Co., 14 Id., 169; Prees v. Davis, 29 Mo. 184; Hodges v. Torrey, 28 Id., 103; Cooley, Torts, 475, 483, 487, 502; 1 Story, Eq., secs. 199, 200, 203, 203a, 203b; Wall v. Stubble, 10 Vesey, Jr. [Eng.], 509; Dyer v. Hargrave, Id., 505; Anderson v. Burnett, 35 Am. Dec., 426; Bell v. Henderson, 6 HOW [Miss.], 313; Juzan v. Toulmin, 44 Am. Dec. 452; Kerr, Fraud & Mistake, 382, 383; Custar v. Titusville, 63 Pa. 381; Vicksburg R. Co. v. McKean, 12 La. Ann. 638; Crossman v. Penrose Co., 26 Pa. 69; Hughes v. Antietam Co., 34 Md. 317; Kelsey v. N. L. Co., 54 Barb. [N. Y.], 111; Walker v. Mobile R. Co., 34 Miss. 245; Anderson v. R. Co., 14 Ind. 169; Johnson v. Crawfordsville, 11 Ind. 280; Mabey v. Adams, 3 Bosw. [N. Y.], 346; Upton v. Tribilcock, 1 Otto [U. S.], 45; Goodrich v. Reynolds, 31 Ill. 490; Saffold v. Barnes, 39 Miss. 399; Uppfalt v. Nelson, 18 Neb. 533; Gammage v. Alexander, 41 Tex. 418; Teal v. Terrell, 48 Id., 491; Whart., Ev., sec. 1174; Williams v. Lowe, 4 Neb. 393; Pratt v. Philbrook, 41 Me. 132; Tuck v. Downing, 76 Ill. 71; Whiting v. Hill, 23 Mich. 399; Bowman v. Carithers, 40 Ind. 90; Stitt v. Little, 63 N.Y. 427; Phipps v. Buckman, 30 Pa. 401; 1 Greenleaf, Ev., 113, 114; Chapman v. R. Co., 55 N.Y. 584; Gilman v. R. Co., 13 Allen [Mass.], 444; Livingston v. R. Co., 35 Iowa 556; Verry v. R. Co., 47 Id., 549; Martin v. Farnsworth, 49 N.Y. 558; Trudo v. Anderson, 10 Mich. 357; Rice v. Club of G. R., 52 Id., 87.

Norval Bros. & Lowley, for appellees, cited: State v. Babcock, 21 Neb. 187; Williams v. Holmes, 2 Wis. 9; Damp v. Dane, 29 Id., 427; Canfield v. Smith, 34 Id., 381; Eldred v. Leahy, 31 Id., 546; Galbraith v. Plasters, 101 Ill. 444; Gage v. Busse, 94 Id., 590; Sinnett v. Moles, 38 Iowa 25; Curry v. Board, 15 N. W. Rep., 602; Henderson v. R. Co., 67 Am. Dec., 675; Crump v. Mining Co., 56 Id., 116; Wickham v. Grant, 28 Kan. 517; Melendy v. Keen 89 Ill. 395; Sanford v. Handy, 23 Wend. [N. Y.], 260; Burhop v. Milwaukee, 18 Wis. 453; McClellan v. Scott, 24 Id., 81; Davis v. Dumont, 37 Iowa 47; Vreeland v. Stove Co., 29 N. J. [Eq.], 188; People v. Supervisors, 67 Ill. 57; People v. Ry. Co., 63 Id., 374; People, ex rel., v. Jackson Co., 92 Id., 441; Platteville v. R. Co., 43 Wis. 493.

MAXWELL, J. COBB, CH. J., concurs. NORVAL, J., took no part in the decision.

OPINION

MAXWELL J.

This is an action to enjoin the issuing of certain bonds of K. township, in the county of Seward, and to have said bonds canceled and delivered up and declared null and void. The pleadings, which are very lengthy, need not be set out in this opinion.

On the trial of the cause the court made findings and rendered judgment as follows:

"Now on this 29th day of December, 1888, this cause, heretofore tried on a former day of the present term of court and taken under advisement, came on for decision and judgment; and the court, being now fully advised in the premises does find the issues joined in favor of the plaintiffs, and that the injunction heretofore allowed and granted and issued herein ought to be made perpetual, and that the bonds now under custody of the court, in the hands and keeping of S. C. Langworthy, ought to be canceled and held for naught, and that the said colorable and the apparent record of the proceedings of the board of supervisors of Seward county, recorded in Commissioners' Record No. 4, pages 94 to 98 inclusive, and on pages 127 to 131, so far as the same relates to the calling of an election and the voting of bonds in said K. township, is incorrect, unauthorized, and ought to be canceled, set aside, and held for naught. It is therefore by the court considered, ordered, and adjudged that the said bonds and the proposition for their issue and the election held and proceedings had and done in pursuance thereto in reference to the issue of said bonds of K. township, in Seward county, Nebraska, were unauthorized by law and void, and that the same and all proceedings of the said board of supervisors in reference thereto be held for naught; that the said defendants, their successors in office or assigns, are perpetually enjoined and restrained from delivering or authorizing the delivery in any capacity whatever of the said bonds or any of them to the said defendant railroad company, and from negotiating or transferring them or any of them at any time; and the said defendant railroad company, its officers, assigns, agents and successors, are each of them restrained from receiving, claiming, assigning, or negotiating said bonds or any of them, and from in any way holding the same to be valid; that the said board of supervisors and county clerk and their successors in office are severally enjoined and restrained from signing, authenticating, or in any way validating said election, canvass on the question submitted at said special election, or the record of said proposition submitted, or the record of the board of supervisors thereon, and from in any way giving color of validity of said proceedings or any of them, and from recognizing in any way the same to be valid."

To authorize a precinct, township, or village to issue bonds the statute requires: "A petition signed by not less than fifty free-holders of the precinct, township, or village to be presented to the county commissioners, or board authorized by law to attend to the business of the county within which such precinct, township, or village is situated. Said petition shall set forth the nature of the work contemplated, the amount of the bonds sought to be voted, the rate of interest, which shall in no event exceed eight per cent per annum, and the date when the principal and interest shall become due, and the said petitioners shall give bond, to be approved by the county commissioners, for the payment of the expenses of the election, in the event that the proposition shall fail to receive a two-thirds majority of the votes cast at the election."

It appears from the record that fifty persons did sign the petition, and that thereupon the election was duly called and held, and the bonds declared carried. This election appears to have been held before the depot in the township of K., Seward county, was located. There is a large amount of testimony in the record tending to show that a considerable number of the signers of the petition were induced to sign the same by representations of the agents of the railroad company that a freight and passenger depot on the line of said railroad would be located upon section 16 of said township.

The depot finally was located on section 17 of said township. A proposition to issue bonds to aid in the construction of a railway is in the nature of a contract, which, when accepted, is binding upon the respective parties. Hence, if the electors, through false or fraudulent representations, have been induced to vote bonds to aid in the construction of such railway, a court of equity in a proper case will grant relief. (Curry v. Board of Supervisors, 15 N.W. 602; Sinnett v. Moles, 38 Iowa 25; Henderson v. San Antonio, etc., R. Co., 17 Tex. 560, 67 Am. Dec. 675; Crump v. U.S. Mining Co., 48 Va. 352, 56 Am. Dec. 116; Wickham v. Grant, 28 Kan. 517.)

Where parties have been induced by false representations to sign a petition calling an election to vote aid to a railway, they may set up such false representations as grounds for enjoining the issuing of the bonds. (Sinnett v. Moles et al., 38 Iowa 25; Curry v. Board of Supervisors, etc., 15 N.W. 602; Wickham v. Grant, 28 Kan. 517; Melendy et al., v. Keen, 89 Ill. 395; Sandford v. Handy, 23 Wend. 260; Burhop v. City of Milwaukee et al., 18 Wis. 431; McClellan v. Scott et al., 24 Wis. 81; Davis & Co. v. Dumont, 37 Iowa 47; Vreeland v. New Jersey Stone Co., 29 N.J.Eq. 188.)

If therefore, the plaintiffs were...