State ex rel. Patterson v. Board of County Commissioners

66 N.W. 434, 47 Neb. 428, 1896 Neb. LEXIS 614

• Court: Nebraska Supreme Court
• Decided: March 5, 1896
• Docket: No. 7814
• Status: Published

Opinion

Rtan, 0.

At the last session of the legislature of this state there was passed and approved an act entitled “An act enabling counties in the state of Nebraska having a population of not less than 125,000 inhabitants to issue bonds to construct, own and operate canals in the state of Nebraska for navigation, water power and other purposes, and generating of electric and other power and transmitting of the same for light, heat, poAver, and other purposes; and to acquire right of Avay and land for such purposes, and to provide for the appointment of a board of trustees to carry into effect the purposes of this act, and to levy taxes to pay the same and interest thereon, and to repeal Section 2032a, Consolidated Statutes, 1893.” (Session Laws, 1895, ch. 71.) Douglas county alone in this state has a population adequate to render available the above provisions. In the body of the act in question it is provided that the bonds which may be issued shall not exceed in amount ten per cent of the assessed valuation of the county, and that, whether or not bonds shall be voted, must first be submitted to the voters of the county in compliance with the prayer of a petition signed by 2,500 legal voters asking suck submission, which petition must be presented, to and acted upon by the county commissioners. A petition in conformity with the above requirements was presented to the board of county commissioners of Douglas county. This board refused to call an election, and by mandamus in the proper district court it was sought by one of the petitioners to compel the county board to order an election. The judgment of the district court was adverse to relator, and the correctness of this judgment is - now challenged by this error proceeding.

It is very difficult to summarize the provisions of the above act within a reasonably brief space, nevertheless this shall now be attempted. After the proposition to issue bonds has been carried it becomes the duty of the county commissioners to notify the judges of the district court of the result of the election, whereupon these judges are required to appoint five trustees. Each of the trustees must give an official bond in such amount as the board of county commissioners may fix. It is provided that the board of trustees shall, “when duly organized, be construed in laAV and equity a body corporate and politic, and shall be known by the name g,nd style of ‘The Board of Canal Trustees of - County, Nebraska,’ and by .such name and style may sue and be sued, contract and be contracted with, acquire and hold real estate and personal property necessary for its corporate purposes and adopt a common seal and alter the same at pleasure, and shall exercise all the powers necessary to carry into effect the object for Avhick such board shall have been appointed, and shall control and manage all the affairs and property which shall come into the hands or under the control of such board of trustees.” (Session Laws, 1895, p. 307, ch. 71, sec. 1.) It further provides: “Such board of trustees shall have full power to pass all necessary rules and regulations for the proper management and conduct of the business of such board, and of such corporate body, and for carrying into effect the objects for which such board is created. Any board of canal trustees organized as provided in this act shall have power to make preliminary surveys, lay out, acquire right of way and other lands within such county or within twenty miles of the limits of such county, necessary for its purposes, establish, construct, and maintain and operate a canal through any county or counties in this state for navigation, water power, and all other purposes, except irrigation, for generating eledtric and other power and transmitting the same for light, heat, power, and all other purposes except irrigation, and may dispose of the water in such canal for domestic and for all other purposes except irrigation, and to control and dispose of water power, electric, pneumatic, hydraulic, or other power generated by such water power, also to operate a line of boats on such canal, or granting the right for such navigation to any party or parties-upon payment. 'of tolls, subject to such rules and regulations as shall be established and adopted by such board of trustees; Provided, That no exclusive right shall be granted to any person or persons or corporations, except that such board may lease to any party, ground for manufacturing or industrial purposes for a term or terms of years, which ground so leased shall be subject to reappraisal for rental purposes every twenty years. All revenues derived by said board of trustees from every source shall be deposited with the couuty treasurer of such county and by him be placed in a fund to be designated as the canal fund, the general expense, maintenance, extension, or enlargement of such canal or other works connected therewith shall be paid out of said canal fund by the county treasurer of such county upon official orders issued by the board of canal trustees. All surplus moneys in said fund not needed for canal expenses, improvement, or enlargement shall be placed in the general fund of the county and may be used for all purposes for which the county general fund, as now designated, may be used. Such board of trustees for and on behalf of such county may acquire by purchase, condemnation, or otherwise, whether within or without the county limits, if within twenty miles of the limits of such county, any and all real property necessary to carry into effect the objects for which such board shall have been appointed and which may be required for its corporate purposes and right of way for the canal and right of way privileges and easements, sites for reservoirs and dams, power houses, and additional lands to be leased to persons, parties, or corporations purchasing or using such power; Provided, That all the moneys for the purchase of any real property shall be paid before possession is taken thereof, or any work done thereon, and all moneys for the condemnation of any property shall be paid into the county court of the county in which such property shall be condemned. Whenever the board of canal trustees of any county appointed under this act shall require any private property necessary for the purposes aforesaid, such property shall be acquired or condemned as nearly as may be in the same manner as is provided by law for the condemnation of right of way for railroad corporations within this state; Provided, That proceedings to acquire possession by condemnation of property so taken shall in all cases be instituted in the county where the property sought to be taken or damaged is situated; Provided, That when it shall be necessary in making any improvement by such board of trustees to enter unon any property held for public use they shall have power to do so, and may acquire right of way upon and over such property held for public use in the same manner as is above provided for acquiring private property by condemnation of such board of trustees, and may enter upon, use, widen, deepen, and improve any stream, waterway, or lake that may be, necessary to be used for such canal purposes, but in cases where public roads are crossed by such canal or tai-l-race or outlets thereof, such board of trustees shall cause to be constructed and maintained, bridges over such canal or tail-race or outlets thereof.” (Session Laws, 1895, p. 308, ch. 71, sec. 1.)

It is scarcely necessary, perhaps, to note that in respect to the canal proposed to be constructed and operated the board of county commissioners of Douglas county, after they shall have ordered an election, have but little more to say or do. The duty is devolved upon the board to notify the district judges of the result of the election upon the proposition to issue bonds, whereupon the judges must appoint five trustees. These trustees, when organized so as to constitute a board, take charge of the construction and operation of the canal as property owned by itself for the use and benefit of the county. There is' a provision that the title shall be held for the county, but there is no method by which the county, co nomine, can assert ownership or an independent right of possession. All revenues, it is true, must be deposited with the county treasurer, but these must be kept as a distinct fund and from this fund the board of trustees, upon its own orders, may require payments to be made, and only such surplus as the board of trustees does not require may be used by the county. The' county commissioners have no voice in allowing or rejecting claims, and there is reserved no right of appeal in favor of either the county or a taxpayer. There is required no accounting by the trustees, either of moneys received or expended, and, without the consent of property owners thereby affected, the jurisdiction of these functionaries of Douglas county is extended over a circumjacent strip twenty miles in width, for certain purposes attached to and treated as a mere outlying province.

Counsel for plaintiff in error, in his reargument of this case, made in compliance with a request to that effect, contends that the provisions with respect to the creation of a body corporate and politic finds judicial sanction in People v. Kelly, 76 N. Y., 475, Walker v. City of Cincinnati, 21 O. St., 14, People v. Salomon, 51 Ill., 37, and in several California irrigation cases. Before attempting an expression of our own views, we shall indicate why these cases fail to establish the propositions in support of which they were cited.

In People v. Kelly an amendment of the constitution of the state of New York had prohibited cities and other municipal corporations from becoming interested in any stocks or bonds of any corporation, and from incurring any indebtedness except for county, city, or village purposes. It became necessary for the construction of the bridge between the cities of New. York and Brooklyn that those cities should own the aforesaid bridge, and, for its joint construction and control, a board of sixteen trustees, one-half of whom were to be appointed by the authorities of each city, was provided. This board was in no sense a body corporate or politic.

In Walker v. City of Cincinnati, Scott, C. J., in delivering the opinion of the court, said: “The general scope and purpose of the act is to authorize any such city to construct a line of railroad leading therefrom to any other terminus in the state or in any other state, through the agency of a board of trustees consisting of five persons, to be appointed by the superior court of such city, or if there be no superior' court, then by the court of common pleas of the county in which such city is situated. The enterprise .cannot, however, be undertaken until a majority of the city council shall, by resolution, have declared such line of railway to be essential to the interests of the city, nor until it shall have received the sanction of a majority vote of the electors of the city, at a special election, to be ordered by the city council, after twenty days’ public notice. For the accomplishment of this purpose the board of trustees is authorized to borrow a sum not exceeding ten millions of dollars, and to issue bonds therefor in the name of the city, which shall be secured by a mortgage on the line of railway and its net income, and by the pledge of the faith of the city and a tax to be annually levied by the council, sufficient with such net income to pay the interest and provide a sinking fund for the final redemption of the bonds.” Speaking of the trustees above provided for it was said in the opinion above quoted from: “But it is clear that the trustees are a mere agency through which the city is authorized to operate for its own sole benefit. Neither as individuals, nor as a board, have they any beneficial interest in the fund which they are to manage, or in the road which they are to build. They are in fact, as well as in name, but trustees, and the sole beneficiary of the trust is the city of Cincinnati.” These trustees, when organized as a board, certainly were not “a body corporate and politic.”

In People v. Salomon the scope of the decision, in so far as it is applicable to this case, is thus expressed in the fourth paragraph of the syllabus: “Under the act of February 24, 1869, providing for the location and maintenance of a park for the towns of South Chicago, Hyde Park, and Lake, those towns were erected into a park district, and the people of the towns affected by the act having, by a vote, accepted its provisions, the board of park commissioners thereby created, to whom was committed the entire control of the park, became a municipal corporation, in whom it was competent for the legislature to vest the power to assess and collect taxes within the park district so created, for the special corporate purpose of its creation, and such is the effect of that portion of the act which requires the county clerk of the county in which the district is situated, on the estimate of the park commissioners, to place the amount re'quired, within certain limits, in the tax warrants for the towns embraced in the district.” The nature and functions of a district of the kind above referred to are found to exist in irrigation -districts, and, as the discussion of districts of this latter class applies equally to the park district above referred to, no further space will be devoted to a consideration of People v. Salomon, supra.

Counsel for plaintiff in error cites several California cases as being analogous in principle to the ■one at bar, but apparently have overlooked the •case of Board of Directors of Alfalfa Irrigation District v. Collins, 46 Neb., 411, in which this court has already considered this class of adjudications. Referring to chapter 69, Laws, 1895, Post, J., in the case just cited said: “The act provides for the creation of irrigation districts comprising property susceptible of irrigation from the same source and by means of the same system of works. It requires a petition to be filed with the county board, signed by a majority of the resident freeholders who are qualified electors and who own a majority of the whole number of acres of land belonging to resident electors, particularly defining the boundaries of the proposed district. The county board may, on the final hearing of the petition, and after notice thereof to all parties interested, define the boundaries, making such changes thereof as may be deemed proper, but including therein no lands which are not susceptible of irrigation by the same system. The question is then, at a special election, submitted to the ■electors of the proposed district, who are also owners of real estate therein. Upon the adoption of the proposition a record thereof is to be filed in the office of the county- clerk of each county in which any portion of the land included in said district is situated, and immediately thereafter-the county board shall call a special election, at. which there shall be chosen a treasurer, an assessor, and three directors.” In inspect to the-nature of irrigation districts it was said in this, opinion: “The validity of this species of legislation, was first called in question in Turlock Irrigation District v. Williams, 76 Cal., 360, in which it was-held under constitutional provisions substantially similar to ours that the districts contemplated by the statute of that state are gwusi-public corporations in the sense that the purpose of their organization is the general public benefit.” Having reviewed at some length the trend of judicial decisions in California, Post, J., quoted with approval the language of Harrison, J., in Re Madera Irrigation District, 92 Cal., 296, from which quotation the following is reproduced: “It is contended that the act is unconstitutional for the reason that it is. a delegation of the legislative power to create a corporation. If by this is meant that only the-legislature can create such corporation, the answer is that the constitution prohibits such action. If it is meant that because the corporation is not Treated’ until the voters of the district have accepted the terms of the act, the answer is that such proceeding is in direct accord with the principles of the constitution. Having the power to-create municipal corporations, but being prohibited from creating1 them by special laws, the only mode in which such corporations could be created under a general law would be by some act on the-part of .the district or community seeking incorporation indicative of its determination to accept its. teiuns. As the constitution has not limited or prescribed the character of such general law, its character and details are within the discretionary power of the legislature. We know no more appropriate mode of such indication than the affirmative vote of those who are affected by the acceptance of the terms of the act.” From the very instructive case of Board of Directors of Alfalfa Irrigation District v. Collins there is clearly deducible the conclusions that irrigation districts organized as above indicated are public, rather than municipal corporations; that their officers-are public agents, and' that, having been created by vote of the people concerned, duly authorized thereto by a constitutional law, an irrigation district may properly perform the appropriate functions with which it is endowed. Neither the California cases nor the other cases cited on behalf of' plaintiff in error furnish any analogies which can. be of use with respect to the case under consideration. How, then, shall we classify this “body-corporate and politic,” which, differing in its gene-sis and functions from any known political organization, nevertheless assumes the performance of' duties and the exercise of functions which in noway resemble those by law devolved upon the-board of county commissioners?

The defendants in error contend that the individual trustees are public officers, and that, therefore, the very essential part of the act which provides for their appointment necessarily constitutes them county officers, and on this account it should be declared void. In opposition to this, contention we are reminded that the individual trustees have no authority as such, and that it is only as a board that they have recognition. In a brief submitted on behalf of the plaintiff in error it is said: “We insist that this act creates a new- and independent municipal corporation. It is not a city or county corporation, but one wholly distinct from either, etc. * * * The act does not in any way abridge or curtail any of the rights of the counties heretofore existing, or the right of any of its officers, or does not amend or conflict with any of the provisions of the statute heretofore existing regarding counties.” In another brief submitted on behalf of the plaintiff in error occurs the following language: “There is an important feature of the canal act which ought to be considered in this connection. The board of canal trustees when duly organized are to become, in law and equity, a corporation. No one of the trustees fills any office except as a member of the board. The board itself — the corporation — is the agency of the state to carry into effect the purposes of the act.” From these definitions and limitations, if accepted as correct, it would necessarily result that by an act of the legislature a method had been provided whereby a corporation, consisting of five private citizens, may be created. It is idle to insist that this board of trustees, when organized, can be a municipal corporation in any sense. The following definition of the term “municipal corporation” is given by an eminent writer upon that subject: “We may therefore define a municipal coi’poration in its historical and strict sense to be the incorporation by the authority of the government of the inhabitants of a particular place or district, and authorizing them in their corporate capacity to exercise subordinate specified powers of legislation and regulation with respect to their local and internal concerns. This power of local government is the.distinctive purpose and the distinguishing feature of a municipal corporation proper.” (1 Dillon, Municipal Corporations, sec. 20.) “A municipal corporation is a subordinate branch of the government of state.” (Mayor of Nashville v. Ray, 19 Wall. [U. S.], 475.)

In argument no claim has been founded upon the use of the term “body politic,” also used as a part of the description of the board of trustees contemplated in the act, and we apprehend that none properly could be. We must, therefore, deal with the board as a corporation haying no municipal attributes, and of which no municipal duties can be required. It is provided in section 1, article 11, of the constitution of Nebraska, under the head of “Miscellaneous Corporations,” as follows:

“Section 1. No corporation shall be created by special law, nor its charter extended, changed, or amended, except those for charitable, educational,, penal, or reformatory-purposes which are to be and remain under the patronage and control of the state, but the legislature shall provide by general laws for the organization of all corporations hereafter to be created.”

Under this provision of the constitution there was in existence before this act was passed a general law which provided how corporations composed of and managed solely by private citizens must be created. Previous to the commencement of business, corporations within the class indicated were required to adopt and file for record articles of incorporation, and to publish notice of the name, the place, and the nature of their business, the amount of capital stock, the time of commencement and termination, to what amount they might become indebted, and by what officers their affairs should be managed. It can scarcely be claimed by the plaintiff in error that “The Board of Canal Trustees” can be a “corporation designed for either charitable, educational, penal, or reformatory purposes,” and yet its creation is provided for by an act which in no way refers to the general incorporation law which is to be found in chapter 16, Compiled Statutes. This method of amending statutes already in existence is unquestionably in violation of the provision in section 11, article 3, of said constitution that “no law shall •be amended unless the new act contain the section or sections so amended, and the section or sections so amended shall be repealed.” (Smails v. White, 4 Neb., 353; Sovereign v. State, 7 Neb., 409; Stricklett v. State, 31 Neb., 674; Trumble v. Trumble, 37 Neb., 340.) Por the sake of the argument, if it •should be conceded to the contention of the plaintiff, that the board of trustees duly organized becomes a municipal corporation, the above considerations would still have the same force, the -difference being merely that the amendatory act invades the field of legislation governing municipal as distinguished from ordinary corporations.

. The right of eminent domain, by the provisions of the act, was delegated directly to the board of trustees as such, and the title of the property acquired by its exercise, or in any other way, for the construction and operation of a canal, is to be held by the board of trustees in its corporate capacity. The title of this act is “An act enabling-counties * * * to issue bonds to construct, own, and operate canals, * * * ami to acquire right-of way and land for-such purposes, and- to provide for the appointment of a board of trustees to carry into effect the purposes of this act, and to levy taxes to pay the same and the interest thereon,” etc.- Of these enumerated purposes, the power to issue bonds and the power to levy taxes for the payment of the principal and Interest thereof are contained in the body' of the act without question. In a certain sense, perhaps, the provision in the title for the appointment of a hoard of trustees to carry into effect the provisions of this act finds response in the provisions of the bill which turn over to said board the whole property as it is acquired or constructed. But it is believed that no power of construction is adequate to the task of demonstrating that the powers of a county to own and operate canals, and to acquire and hold land for such purposes, as provided in the above title, are at all met by providing in the bill itself that such powers shall be vested in a specially created distinct corporation, •even though municipal, independent of the county as well as of its officers and taxpayers. The title •of the bill is therefore misleading as to a part of the act, without which its purpose could not be accomplished, and since this part of the subject is not clearly expressed in the title, as required by section 11, article 3, of the constitution of this state, no part of the act can be sustained. (Ives v. Norris, 13 Neb., 252; State v. Ream, 16 Neb., 681; Trumble v. Trumble, 37 Neb., 340.) The judgment uf the district court is

Affirmed.

Norvae, J., Harrison, J., and Eagan, C., concur in result. Irvine, C., not sitting. Post, C. J., dissenting.