156 Minn. 467 | Minn. | 1923
The appeal is from an order granting a temporary injunction in a suit by a taxpayer of the city of Red Wing to permanently enjoin the city and its officers from erecting a municipal light and power plant and from issuing and selling bonds for that purpose.
The rule is settled that this court will not reverse an order granting or refusing a temporary injunction, unless it is made to appear that the action of the court below was an abuse of discretion. The late cases so holding are: Minneapolis Gaslight Co. v. City of Minneapolis, 123 Minn. 231, 143 N. W. 728; Potter v. Engler, 130 Minn. 510, 153 N. W. 1088; Borough of Belle Plaine v. Northern Power Co. 142 Minn. 361, 172 N. W. 217; Goodrich v. Northwestern Tel. Exch. Co. 148 Minn. 219, 181 N. W. 333. Especially ought that rule to
Bonds of the sort here in question may be issued by a city council only when it has been so determined by an affirmative vote of three-fifths of the legal voters, voting at a general or special election (sections 1762-1768, G. S. 1913, and amendatory acts). The complaint charges that notices calling the election at which this bond issue carried failed to state certain facts required by the statute to be stated therein. An alleged copy of the notices posted is attached to the complaint, and must be conceded fatally defective. Defendants deny the exhibit to be a copy of the election notices and adduce affidavits that an exhibit they produce, and which admittedly is adequate as to form and contents, is a true copy of those posted. Whether the one or the other is a true copy of the notices actually posted cannot be disposed of with any degree of certainty until the trial. The showing was wholly by affidavits on both sides. No provision of law seems to exist for the filing of copies of such notices or of proof of posting with any city official. If the trial court believed it probable that plaintiff at the trial, when affiants and other witnesses would be subject to cross-examination, could prove that the copy he produced was a correct copy, the granting of the temporary injunction was justified.
There may also be justification on the ground of delay. Nearly 4 years had elapsed since the election without any of the bonds being signed. When it was held, the franchise of a private corporation, furnishing light and power to the city and its inhabitants, was about to expire. There was uncertainty as to a renewal. Since the election the franchise had been renewed or extended for a term of 10 years. Plaintiff contends that the delay has been so Unreasonable
It is suggested that the erection of the plant should not have been enjoined even if the issue and sale of the bonds might be held up
We do not consider other grounds urged by plaintiff, for in those already mentioned we find good cause for holding that no abuse of judicial discretion is shown in granting the temporary injunction.
Order affirmed.