Hurd v. City of Fairbury

128 N.W. 638, 87 Neb. 745, 1910 Neb. LEXIS 322

• Court: Nebraska Supreme Court
• Decided: November 16, 1910
• Docket: No. 16,876
• Status: Published

Opinions

Reere, O. J.

This action was instituted in the district court for Jefferson county for the purpose of restraining and enjoining tlie mayor and council of the city of Fairbury from selling certain bonds of said city issued in pursuance of elections held therein, whereby it is claimed by the city officers that the issuance of said bonds has been duly authorized by the electors. The bonds have been duly certified by the auditor of state, and are ready for sale, but some questions have arisen as to the granting of the power by the electors, and plaintiff', a citizen and taxpayer, has sought the decision of the courts as to the validity of the bonds. The petition is of great length, consisting of a carefully, prepared history of the proceedings leading up to the issuance of the bonds, copying the records of the city, and averring that the authority for the action of the mayor and council was not given by the electors. The petition is in two counts and states two causes of action. An election was called to be held on the 26th day of April, 1910, “at the regular polling places in the city of Fairbury,” for the purpose of voting on two propositions: One, that of issuing the bonds of the city of Fairbury in the sum of $20,000 “for the purpose of raising a sum sufficient to purchase or install and establish an electric light system within said city;” the other, to-issue the bonds of the city in the sum of $115,000 “for the purpose of purchasing or erecting, constructing, locating and maintaining a system of water-works within said city.” The former was adopted and carried by the requisite majority, while the latter, failing to receive the required number of votes, was defeated. Another election was called to be held on the 14th day of June, 1910, at which the second proposition was resubmitted, to wit, the issuance of bonds in the sum of $115,000 for the identical purpose as stated in the former submission. This election resulted in the adoption of the proposition by a sufficient vote.

The invalidity of the electric light bonds is alleged and based upon the following grounds: First, the election notice is insufficient because it did not state the polling-places at which the election was to be held; second, the question submitted was “whether bonds should be issued for the purpose of raising a sum sufficient to purchase or install and establish an electric light system within' said city of Fairbury,” and that the statement of said question made it a dual question and rendered it impossible for the plaintiff and other electors to vote intelligently and to express their sentiments as to whether said city should purchase the old plant or should erect a'new one; third, the record of said proceeding is incomplete in not including in §aid record the final ordinance fixing the form of the bonds. Without further noting the petition in detail, it must be sufficient to say that the objections alleged and urged against the validity of the water bonds are in substance the same as those against the electric light bonds. To each count of the petition the defendants filed a demurrer, assigning as the grounds therefor that the facts stated did not constitute a cause of action. Both demurrers were sustained,' and, the plaintiff not desiring to amend his petition, the action was dismissed at his cost. He appeals.

As to the first contention, that the election notice was insufficient because it did not designate the particular places at which the election was to be held in the different wards, it must be sufficient to say that there is no averment in the petition that there were no “regular polling places in the city of Fairbury” before that time designated and established by ordinance or usage, or that there were none such at which elections had been regularly held, and it would seem that the court cannot assume, in the absence of such averment, that there were no “regular polling places in the city.” There is no averment that any,elector was deprived of his vote, nor that there was any uncertainty as to where the election should be held,, and therefore we must presume that all the existing conditions were met by the notice. If there were regular polling places, the notice was sufficient. We cannot say there were not. Actual notice to the body of electors is sufficient. Wheat v. Smith, 50 Ark. 266. It is not alleged that under a different notice another result Avould have been obtained (Ellis v. Karl, 7 Neb. 381), nor that the electors were not apprised of the places where the election was to be held (State v. Lansing, 46 Neb. 514), and tlm election cannot be held void for the reason stated in the petition alone, without further averments.

The next question is one of no little uncertainty and is quite difficult of satisfactory solution. It applies in some degree to both causes of action contained in the petition. Are these submissions dual, or in the alternative? If so, does the form in which the submissions were made render the proceedings void? The proposition to issue the electric light bonds was stated in this language: “Notice of Special Election. Notice is hereby given that on Tuesday, the twenty-sixth (26th) day of April, A. P. 1910, at the regular polling places, in the city of Pairbury, Jefferson county, Nebraska, a special election will be held for the purpose of submitting to the legal voters of said city of Pairbury the following proposition, to wit: Shall the mayor and city council of the city of Pairbury, Nebraska, issue the bonds of said city in the sum of twenty thousand dollars ($20,000), bearing the date of the day of their issue, and maturing in twenty years from date, bearing interest at the rate of five per cent, per annum, payable semiannually, said principal payable at any time after the expiration of ten years at the option of said city, for the purpose of raising a sum sufficient to purchase or install and establish an electric light system within said city of Pairbury, Nebraska?” It is conceded by both parties that at the time of the filing of the petition and issuance of the call for the election, and at all times thereafter, there was an electric light plant in the city, owned by private parties, and fór the purchase of which, by the city, negotiations liad been and were pending, and that it was the purpose to purchase the existing plant; but, in case purchase could not be made on favorable terms, the mayor and council should have authority to construct and install such plant as might be needed. The principal and leading purpose was to procure a system of which the city might be the owner. We have been furnished a copy of a very carefully prepared opinion by Honorable L. M. Pemberton, the judge of the district court before whom this case was tried, and, as it disposes of the questions involved in this part of the case in accord with our views, Ave avail ourselves of his reasoning, and copy quite largely therefrom. He says: “Sections 8994 and 8995, Ann. St. 1909, are the ones that seem to control in said matter. They provide that any city of the second class ‘shall have the poAver and is hereby authorized to establish and maintain a system of electric lights for such city,’ and that the city council shall have the power to levy á tax not exceeding five mills on the dollar in any one year for the purpose of establishing, extending and maintaining such system of electric lights. That when such tax should be insufficient to establish a system of electric lights as contemplated therein, such city may issue its bonds for the purpose of raising a sum sufficient to establish such an electric light system. It will he seen that the statute authorizes the issuance of bonds, when authorized by a vote of the electors, to establish a system of electric lights. The proposition submitted to the electors included the purchase of an electric light system. Does the statute confer authority upon the mayor and council to purchase a plant, even when authorized by a vote, or to submit that question to the electors?

“The word ‘establish’ is a word of various meanings, but there does not seem to be any dictionary definition that is the exact equivalent of the word ‘purchase.’ Its primary definition is: to make stable; to settle or fix firmly. Other definitions are:' to set up or found; to place on a permanent footing; to put in a settled or efficient state or condition; to place upon a firm foundation. Century, Standard, and Encyclopedic Dictionaries. It would seem that before an electric light plant could be purchased by the city it would have to be ‘established’ by some one else. Yet, it might not be Avithin the above definitions. If it were about to be removed, or taken down, or to fall into disuse or decay, or were for any other cause in a precarious or inefficient condition, it would not be ‘established’ within the meaning of that word as contained in several of its definitions. And it might be necessary or proper for the city to purchase it in order to ‘establish’ it; that is, put it in a settled or efficient state or condition, or upon a firm foundation and permanent footing. See State v. Rogers, 107 Ala. 444, 19 So. 909. The authority to establish a system of electric lights would seem to confer power to do anything necessary to provide the city with a permanent and efficient electric lighting plant. If by purchasing an old plant and putting it into proper repair and good condition, the city could establish a lighting plant more cheaply than by constructing a new one, I think the city would have authority to do so. Thus it has been held that ‘power to establish markets’ necessarily conferred the power to purchase and hold the land on which such market was to be erected, and to construct buildings thereon for market purposes. People v. Lowber, 28 Barb. (N. Y.) 65; Ketchum v. City of Buffalo, 21 Barb. (N. Y.) 294. So of a hospital. City of Richmond v. Supervisors of Henrico County, 83 Va. 204, 2 S. E. 26; Beekman v. People, 27 Barb. (N. Y.) 260. If authority to ‘establish’ a market or hospital confers power to purchase land and put a building upon it, I can see no reason why the power to establish a system of electric lights should not confer power to purchase land with buildings already upon it, if by that means the city can get property which it can make into a permanent and efficient lighting plant.

“I therefore conclude that the power to establish a lighting plant confers power, in a proper case, to purchase a plant already in existence; and there is no allegation in the petition that this is not a proper case in which to exercise that power if the mayor and council see fit to do so. The presumption is that they will exercise the power properly and in accordance with law.

“In this view of the matter, the question of the proposition submitted to the electors being in the alternative does not arise. For, if the word ‘establish’ includes the word ‘purchase,’ then the alternative is but a mere repetition, and is included in the one word ‘establish.’ If the power was to ‘erect’ a system of electric lighting, and the proposition submitted had been to ‘erect and construct’ such a system, the proposition would have been properly submitted because both words would mean the same thing. So it is with ‘purchase’ and ‘establish,’ for, in the sense used, they both mean the same thing. And, if necessary to carry out the intention of the legislature, the word ‘or’ as used in said proposition should be construed to mean ‘and.’ Thomas v. City of Grand Junction, 13 Colo. App. 80, 56 Pac. 665.”

The submission of the question of issuing bonds for the purpose of supplying a system of water-works for the city designated the 14th day of June, 1910, 'as the date of the special election, and by it the polling places were definitely fixed, but are referred to in the notice as “the regular polling places.” No question is raised as to the fairness of the election, and it is not claimed that there was any confusion or misunderstanding on the part of the electors as to the places at which the election was held. The contention that the submission and notice were defective need not be further noticed.

The part of the resolutions submitting the proposition to the electors, which it is deemed necessary to here notice, is as follows: “Shall the mayor and city council of the city of Fairbury issue the bonds of said city in the sum of one hundred fifteen thousand dollars ($1Í5,000), dated the day of their issue and due twenty years from date, payable at any time after five years from date at the option of said city, drawing interest at the rate of five per cent, per annum, payable semiannually, for the purpose of purchasing or erecting, constructing, locating and maintaining a system of water-works within said city of Fairbury?”

Upon this part of the case the learned district judge says: “The statute involved in this case is section 8927, Ann. St. 1909. By said section the city is authorized ‘to provide * * * for a supply of water for the purpose of fire protection and public use and for the use of the inhabitants of such cities and villages by the purchase, erection or construction of a system of water-works, water mains or extensions of any system of water-works, now or hereafter established or situated in whole or in part within such city or village; and for maintaining the same. * * * Such cities or villages may borrow money, or issue bonds * * * for the purchase, erection or construction and maintenance of such water-works mains, portion or extension of any system of water-works or water supply, or to pay for water furnished such city or village under contract. * * *' Provided, further, that no such money shall be borrowed, or bonds issued, unless the same shall have been authorized by two-thirds of the legal votes of such city or village cast for and against the proposition at an election held for that purpose.’

“The foregoim»' is all of the statute relating to the power to issue said bo . Míe statute first confers power upon the city to provide for a supply of water for the city and its inhabitants, either by the purchase or construction of a system of water-works. Power is then conferred upon the city to issue bonds for the purchase or erection of such water-works, that is, for the water-works before mentioned, namely, water-works with which to supply the city with water. But no such bonds can be issued unless the same shall have been authorized by two-thirds of the legal voters of such city cast for and against said proposition; that is, the proposition to issue such bonds for a purpose authorized by the statute, at an election held for that purpose. In this case the question submitted to the people, more fully stated, was: ‘Shall the mayor and city council of said city issue bonds of said city in the sum of $115,000 to provide a supply of water for the use of the city and its inhabitants, by the purchase or construction of a system of water-works within said city of Eairbury?’ The legal voters of the city knew the law under which the question was submitted to them, and knew the power and authority of the mayor and council thereunder, and voted accordingly. Under said law the mayor and council were the proper persons to elect in what manner the supply of water should be obtained, and if they had had the money could have made said election and put it into effect without submitting any question to a vote of the electors. But not having the money they could not get it by issuing bonds until the question of issuing the bonds had been submitted to the electors and voted'by them. The question submitted, of course, must have been, and was, for a purpose authorized by the statute, namely, for the procurement of a water supply for the city, either by purchase or construction of a system of water-works as the mayor and council might elect. To this proposition the voters answered ‘Yes’ by more than a two-thirds vote. The voters have thus expressed their approval of the determination of the mayor and city council to provide a water supply for the city in the manner provided by law, by voting the bonds with which to obtain said water supply. Inasmuch, therefore, as the statute confers power upon the mayor and council to procure a Avater supply for the city in either of said methods, and the electors of said city have voted bonds to enable the mayor and city council to procure such supply of water in the way pointed out by the statute, I see no reason why the court should overrule both the city authorities and the electors of the city by enjoining the city from disposing of said bonds. As authority for such holding I think the statute itself is wholly adequate; but the following.authorities are directly in point: State v. Allen, 178 Mo. 555, 77 S. W. 868; C. B. Nash Co. v. City of Council Bluffs, 174 Fed. 182; Thomas v. City of Grand Junction, 13 Colo. App. 80, 56 Pac. 665.

“The cases cited by plaintiff, namely, City of Leavenworth v. Wilson, 69 Kan. 74, 76 Pac. 400, and Farmers Loan & Trust Co. v. City of Sioux Falls, 131 Fed. 890, are not only based upon different, statutes from ours, but also cite as their authority the case of Elyria Gas & Water Co. v. City of Elyria, 57 Ohio St. 374. The latter case was not only under a different statute but under a different l>roposition from the one in the present case, and also a proposition not authorized by the statute. In that case the proposition was for the purchase and erection of waterworks, while the statute conferred authority to issue bonds for the erection or purchase of such works. The court does not question the right of the city to own two plants, one by purchase and the other by construction, but says the proceedings would be entirely different, and that a resolution for the purchase and construction is not a resolution for either purpose separately, but for both purposes combined. What would have been the result had the proposition been for the erection or purchase of such works, as provided in the statute, the court does not say.

“It seems to me that the objection that the voters could not express their wills by voting on a proposition to purchase or construct a plant is more superficial than sound. The proposition was to procure a water supply for the city by the purchase or construction of a water plant, in the discretion of the mayor and council. The voter who did not want to entrust such discretion to them, or who did not want the water-works, only had to vote ‘No’ in order to express his will completely on the subject. If he wanted to purchase water-works, but not to construct them, or vice versa, he could not complain because the council did not submit that kind of a proposition, because it was not for him to dictate the proposition, but to vote on the one submitted, the same being authorized by statute.

“In the Sioux Falls case (131 Fed. 890), the court had decided the case on constitutional grounds before it took up the phase of it under discussion, so that what was said on this question was unnecessary to its decision; besides it does not appear from that case what the authority of the mayor and council was with reference to the construction or purchase of the water-works plant.”

It should be noted that the decision of the circuit court in the latter case (Farmers Loan & Trust Co. v. City of Sioux Falls, 131 Fed. 890) was reversed by the circuit court of appeals, reported in 69 C. C. A. 373 (136 Fed. 721), in which that court, in an elaborate opinion by Judge Iliner, has examined the question with care, and held that the bonds involved in the suit, issued under circumstances quite similar to those under which the bonds in dispute in this case were issued, were legal and binding upon the city of Sioux Falls. That case, as determined by the court of appeals, clearly sustains the decree of the district court in this case.

Another objection presented is that the bonds were issued by virtue of a resolution, and not by ordinance. We regard this question as settled against the contention of plaintiff; in State v. Babcock, 20 Neb. 522, and we will not further extend this opinion by a rediscussion of the subject.

We conclude that the decision of the district court in sustaining the demurrers is correct, and its judgment is

Affirmed.