76 Neb. 552 | Neb. | 1906
This is an action for injunction instituted by the plaintiff, who is a resident and taxpayer of the city of Omaha, to annul ordinance No. 5,613 of said city providing for a special bond election, and to declare void an election held in pursuance thereto, and to restrain the defendants as officers of the city of Omaha from executing or negotiating certain bonds of that city. A demurrer was filed to the petition and sustained by the trial court. Plaintiff, not desiring to plead further, a judgment of dismissal was entered, from which the plaintiff appealed.
The facts alleged in the petition, and necessary for our consideration, are as follows: On September 27, 1905, the
1. The plaintiff contends that the city of Omaha under its present charter has no power to submit such a question to the electors at a special election. Subdivision 28, section 144 of the city charter (Comp. St. ch. 12a, 1905), authorizes and empowers the city to establish fire-engine houses. Subdivision 29 of said section provides that the city may establish any useful or necessary building upon any land purchased for such purpose. Section 195 of the charter provides as follows: “The mayor and council are hereby authorized and empowered to issue bonds of the city with interest coupons annexed in such amounts and for such length of time as they may deem proper * * * for the construction or purchase of a city hall, auditorium, or other needful buildings for the use of the city.” Section 197 provides: “No bonds * * * shall be issued until the electors of said city shall have authorized the same by a two-thirds vote of the electors of such city, voting on said proposition, at a general or special election of said city held after ten days’ notice, published in the official paper of the city stating the maximum amount proposed to be issued and stating distinctly the purpose for which they are to be issued.” Reading the several sections above cited together, it clearly appears that the city has the authority, to construct or purchase useful buildings, and under the petition in this case we are required to assume that the proposed engine houses are necessary and useful. It also appears that the city officers have the power to issue bonds to raise funds for such purpose. We find no provision in the
2. Plaintiff contends, further, that the city of Omaha has no power to issue bonds for the purpose of purchasing a site for an engine house; and cites in support thereof Witter v. Board of Supervisors, 112 Ia. 380, 391, 83 N. W. 1,041, in which the supreme court of Iowa held that under the statute of that state, authorizing counties to borrow money for the erection of public buildings-, and to issue bonds for such indebtedness, a .county has no express or implied power .to issue negotiable bonds for a debt created in the purchase of necessary real estate for a courthouse site. This case, it occurs to us, is not in point. In the opinion the court say in reference to the statutes they had under consideration:
“It is contended by the county, however, that express power so to do is conferred by sections 447 and 448 of the code, and that the power to issue bonds for the erection of a public building was also intended to include the ground upon which it is situated. A careful examination of the statute covering the entire subject leads us to a different conclusion.”
A like examination of- our own statutes leads us to the conclusion that a city of the metropolitan class in this state has the authority to issue bonds for the purchase of land as a site for an engine house. The statute construed
8. The plaintiff further contends that the question submitted at the special election contained more than one proposition, and therefore is in violation of section 194 of the charter which provides that each proposition must contain but one subject or purpose. It is argued that the con-, struction of the engine house located at Twenty-fourth and Cuming streets is one subject; that the engine house to be located north of Willis avenue another; and that the proposed purchase of the tract of land was a third. If more than one proposition was in fact submitted the petition stated a cause of action, and the injunction should have been allowed.. Many cases are cited by counsel wherein the courts of some of our sister states have disapproved similar propositions submitted in the alternative; such as: “Shall the following be adopted: To issue bonds of the city of Leavenworth in the sum of $400,000 to purchase, procure, provide or contract for the construction of waterworks?” City of Leavenworth v. Wilson, 69 Kan. 74.
4. It is next argued that the proposition submitted to the electors was not distinctly stated upon the ballot label of the voting machines. We were not favored with an oral argument of this case, but from plaintiff’s brief it appears that the basis of this contention is that more than one proposition was in fact submitted, while only one appears in the inscription of the ballot label. But as above shown the proposition was single in its nature, and for the reasons above stated the city council had the authority to submit to the voters the proposition in its entirety. The ballot label necessarily contained an abbreviated statement of this proposition. Section 125®, ch. 26, Comp. St. 1905, provides: “On the ballot label for questions, the
5. Plaintiff finally contends that tbe issuance of the bonds in controversy would be illegal because the city council delegated the power of canvassing tbe election returns to the city clerk and two assistants. The persons appointed made a report to tbe city council as to tbe number of votes cast for and against the proposition. It does not appear that they were called upon to exercise any quasi - judicial functions, or perform other than ministerial duties. It is, we believe, without an exception, the general rule that officers may delegate to competent persons, not officers, duties such as are clerical or ministerial in their nature, unless prohibited by statute. In this case the city clerk with the assistance of the persons delegated ascertained the result of the election from abstracts returned by the several election boards and reported the result, which Avas announced by the president of the council. No fraud is alleged; and such irregularity is not sufficient to avoid the election.
From these facts, fully disclosed in the plaintiff’s peti- ' tion, Ave are satisfied that said petition states no legal reason why the plaintiff is entitled to the restraining order and other relief prayed for, and Ave therefore recommend that the judgment of the district court be affirmed.
Affirmed.