State ex rel. City of Kearney v. Babcock

25 Neb. 278

• Court: Nebraska Supreme Court
• Decided: July 15, 1888
• Status: Published

Opinion

Reese, Cii. J.

This is an application to this court, in the exercise of its original jurisdiction, for a peremptory writ of mandamus, directed to the auditor of state, to require him to register certain bonds issued' by the city of Kearney “ for the purpose of erecting a city building, sufficient to accommodate the city officers and records, the fire department and fire apparatus, and the police department, including a city prison.”

From the stipulations on file, it appears that the refusal of the auditor “is based solely on the ground that cities of the second class having over five thousand inhabitants have no power to borrow money or issue bonds for the purpose of erecting useful or necessary buildings for the use of the city.”

The auditor, not feeling entirely certain as to his duty, declined to register the bonds, and submits the question as to his duty to this court for decision.

It appears from the stipulation that the city of Kearney is a city of the second class having over five thousand inhabitants. It is therefore governed by the provisions of article 2 of chapter 14 of the Compiled Statutes of 1887.

Section 52 of that article provides that, “In addition to. the powers heretofore granted cities under the provisions, oí this chapter, each city may enact ordinances or by-, laws for the following purposes: XI. To provide for

the erection and government of any useful or necessary building for the use of the city.”

This section is substantially the same as that presented in The State, ex rel. City of Norfolk, v. Babcock, 22 Neb., 614, and must be governed by the application of the same rule. The relator will, therefore, be entitled to the relief demanded. • '

Writ allowed.

The other judges concur.