41 Neb. 593 | Neb. | 1894
The appellant, as a taxpayer of the defendant school district, brought this action, on behalf of himself and others similarly situated, against the school district and the individual members of its board of education, praying- for. an
“ 5. The court further finds that a proper petition asking for the submission of a vote for the issuing of bonds was presented to the board of education of said city and that said petitions were signed by 1,846 persons, and that said number of signers is sufficient for such a request; that a copy of said petition is correctly set out in plaintiff’s petition and is sufficient authority for such school board to call an election for such bonds.”
“10. The court further finds that the population of said district is about 55,000 and that there are 11,542 children of school age in said district; and that at the date when the request for submission of this election was presented to said board there were at least 9,000 qualified voters in said school district who were entitled to vote upon this bond election; that there were 7,886 male voters registered upon the registration books of said city of Lincoln at said time, and that there were at least 2,000 female voters in said district who had a right to vote upon this bond question,”
The court also found that there were cast for members of the school board the number of votes set out in plaintiff’s petition. The number so alleged shows an average of 4,549 for each office to be filled.
The sufficiency of the evidence upon these points is unquestioned except as to the finding of the number of qualified voters. This will be hereinafter referred to. It may be well to here state that the school district was shown to comprise the territory embraced in the city of Lincoln, with the exception of 460 acres .which lay within the city, but without the school district. The district also included 7,680 acres contiguous to but not within the city, and there
The questions which we conceive to be presented under this" state of the record are as follows: First — Is the presenting of a petition in accordance with the statute an essential prerequisite to the calling of an election to vote bonds? Second — If so, does the board of education, in calíing the election, act judicially in determining whether ór-:not the petition was signed by the requisite number of qualified voters, and is its determination of that question cónclusive against a collateral attack ? Third — If the last question be answered in the negative, how is the requisite number of qualified voters to be determined?
■ 1;. It may be assumed that a court of equity will not in-interfere by injunction even for the purpose of preventing the registration or issuance of bonds at the suit of a taxpayer for mere irregularities in the proceedings not going to-the jurisdiction or power of the officers making the issue, where such irregularities are not of a nature of themselves to prejudice the plaintiff’s rights. If, therefore, the electióti was in other respects regularly called and conducted, arid- if it resulted in the requisite vote in favor of issuing the bonds, their issue should not be restrained because of a defect in the petition unless the presenting of a proper petition, signed by the stated proportion of electors, was a necessary step and essential to confer upon the board of education authority to call the election. The first question presented is, therefore, whether or not the presenting of' a
The law required county commissioners to call an election upon the question of issuing bonds in aid of works of internal improvement upon the presenting of a petition ■signed by not less than fifty freeholders. The court in State v. Babcock, 21 Neb., 187, construing this statute, used the following language : “Under this section the authority of
Counsel suggest that the cases referred to are not applicable, for the reason that both in the calling of special district meetings and in the calling of elections for aid bonds the statute requires a petition having a fixed number of signers, and not a certain proportion of voters. We can see no force in this distinction. Where a fixed number of signers is required the office of the board is then not merely to count the names but, after ascertaining that there is a sufficient number of names, the duty still remains of ascertaining whether the persons whose names are signed have the requisite qualifications. This creates a discretionary power as great as that of ascertaining whether the number of names signed represents a given proportion of the whole number of voters, and we can see no reason for permitting the board’s determination of one question to be conclusive and of the other not. The only doubt which we have upon this question arises from those cases in reference to elections upon the question of relocating county seats. In Ellis v. Karl, 7 Neb., 381, it was held that the law gave to the county commissioners the exclusive authority to determine whether the signatures to petitions for such elections were genuine, and those of persons authorized to sign them, and that where no question was raised
3. Finally, the question is presented as to how the sufficiency of the petition in this case must be determined. It is urged that the law does not require that the petition should be signed by one-third 'of all the qualified voters of the district, but only by one-third of those who are voters at the election, or at least that the number voting upon the proposition at the election must be taken as the sole evidence of the number of qualified voters of the district. To adopt such a construction would, in our minds, be to effect a judicial amendment of the statute. The phrase “one-third of the qualified voters of such district” cannot be construed away. Wherever similar expressions have existed in statutes they have been construed to refer to the total number of qualified voters except where language was employed indicating another sense of the term. The number who voted at the election in controversy as well as the number who have voted at other elections may be competent evidence as tending to establish the number of qualified voters, but it cannot be conclusive. It certainly was not the intention of the legislature to make the j urisdiction of the board to call an election dependent upon the result of the election, nor could it have been the legislative intent, by the use of such language as occurs in this statute, to adopt the vote of any particular preceding election as the test. This is clear when we compare this statute with that for the relocation of county seats, where the requirement is that the petition shall be signed by resident-electors “equal in numbers to three-fifths of all the votes cast in such county at the last general election held therein.” The legislature having used this language in a similar act, it is fair to presume that it would have used it in this had it so intended. The law requires that the petition be signed by one-third of all the qualified voters of the district at the time it is presented, and what number constitutes this one-third is a
Counsel on both sides call attention to the inadequacy of the law when applied to populous districts. The law was clearly devised with reference to districts of small population, and the cities of the state have developed to such an extent that it is difficult now to apply it generally. Some years ago the legislature, recognizing this difficulty, exempted metropolitan cities from the provision requiring a petition. The legislature of 1893, by an act which went into force soon after the acts here in controversy, made certain'amendments intended to adapt the law better to the requirements of the other larger cities. The amendment came too late, however, to apply to this case. The courts cannot amend or repeal the statute because it has grown cumbersome in its application. The legislature must be
We think that the district court erred in holding the petition sufficient and its judgment is for that reason reversed and an injunction allowed as prayed.
Judgment accordingly. «,