62 Neb. 851 | Neb. | 1901
A somewhat careful examination of this case seems to reveal but one question in it, viz., has a taxpayer and water-user a right to enjoin the mayor and city council from passing an ordinance postponing a city’s right to purchase at an appraised valuation the plant of a waterworks company furnishing it water under an exclusive franchise? By the terms of its- franchise the water-works
It is claimed that the proposed action of this city council should be enjoined, because it cedes away future poavers of the city; because the right to acquire the Avater plant by exercise of eminent domain was not reserved; because the city would be disabled from performing its duty of control over the water plant and its power, to purchase would be lost, an exclusive franchise of great value would be given aAvay; that all of the belongings of the Avater company were worth less than $3,000,000, but it was proposed
The important objection to the ordinance itself seems to be that its passage is a palpable violation of the provisions of section 19 of the charter of metropolitan cities. The last clause of section 19 reads: “No new franchise shall hereafter be granted, nor any extensions of franchises heretofore granted be lawful unless an annuity to the city be provided, based upon either a fixed reasonable amount per year, or a percentage on the gross earnings of the owners of said franchise, ñor until a proposition for the same has been submitted to a vote of the electors of the city at a general city election or a special city election called for that purpose, and to carry such a proposition it shall require a majority of the electors voting at such election.” Compiled Statutes, ch. 12a. It is not seriously contended that the proposed action was not in violation of this provision, but it is contended that such action, however unauthorized, can not be prevented by an injunction. It is claimed that the authority of the city council is legislative, and that a court of equity will not interfere with it. It is urged, and numerous authorities cited to sustain the proposition, that the utmost that can be done is to enjoin attempts to enforce invalid ordinances, and that any attempt on the part of a court of equity to control action
It is therefore recommended that the judgment of the district court be affirmed.
For the reasons stated in the foregoing opinion the judgment of the district court is
Affirmed.