Wullenwaher v. Dunnigan

• Decision Date: 22 December 1890
• Citation: 47 N.W. 420,30 Neb. 877
• Parties: WULLENWAHER ET AL. v. DUNNIGAN ET AL.
• Court: Nebraska Supreme Court

30 Neb. 877

47 N.W. 420

WULLENWAHER ET AL.

v.DUNNIGAN ET AL.

Supreme Court of Nebraska.

Dec. 22, 1890.

Syllabus by the Court.

1. A proposition to issue bonds to a railway company is in the nature of a contract, upon the acceptance of which both parties are bound by the agreement.

2. Where certain petitioners were induced to sign a petition calling an election in K. township, Seward county, upon the representations of an agent of the railway company that the depot would be located on section 16 of said township, when in fact the depot was afterwards located on section 17, held, that the company was bound by the representations of its agents, and that persons who had been deceived thereby, and induced to sign the petition, might set up such facts to enjoin the issuing of the bonds.

3. At least 50 freeholders resident of the township, etc., must sign a petition to the county commissioners requesting them to call an election in said township for the purpose of voting aid for a railway. Without a petition so signed by the full number required the commissioners have no jurisdiction.

Appeal from district court, Seward county; NORVAL, Judge.George W. Post and D. C. McKillip, for appellants.

R. S. Norval and George W. Lowley, for appellees.

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 Commissioner's Record No. 4, pp. 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, Neb., 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 holdingthe 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 freeholders 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 50 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 upon 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,...