14 Neb. 280 | Neb. | 1883
Lead Opinion
In the answer of the respondents to the alternative writ, but two reasons are given for the refusal to comply with its command to register and certify the bonds in question. First. That the original issue, which these bonds are designed to replace, was in excess of the amount which the
The question now presented is whether these reasons are sufficient to justify the defendants in their refusal to perform the required acts, it being conceded that they accord with the facts of the case.
The act under which the new bonds were executed is as follows:
“ Section 1. That any county, precinct, or city in the state of Nebraska, which has heretofore voted and issued bonds to aid in the construction of any railroad or other work of internal improvement, and which bonds, or any part thereof, still remain unpaid, and remain and are a legal liability against such county, and bearing interest at ten per cent per annum, is hereby authorized to issue coupon bonds at a rate ■of interest not exceeding eight per cent per annum, to be substituted in place of and exchanged for such bonds heretofore issued, whenever such county, precinct, or city, can effect such substitution and exchange, which substitution and exchange shall be dollar for dollar.
“ Section 2. The new bond so issued shall have recited thereon the object of its issue, the whole of the act under which the issue is made, stating the issue to be in pursuance thereof, and shall also state the number, date, and amount of the bond or bonds for which it is substituted, and such new bond shall not be delivered until the surrender of the bond or bonds so designated.
“ Section 3. The new bonds so issued shall not require a vote of the people to authorize such issue, and they shall be paid, and the levy be made, and the tax collected for their payment, in accordance with the laws now governing the said bonds heretofore issued.” Session laws, 1877, page 224. Comp. Statutes, 325.
It will be noticed that by the first clause of the last sec
The other question raised by the answer — that of the excess of each of these issues over the limit fixed by law— although rather more difficult, may, we think, be readily and satisfactorily answered.
The theory of the respondents is, that they are authorized and required to now pass upon the legality of the old bonds in performing their duties as to the new. If this were so, theii\ action in the premises would be entirely justifiable. But, as we view the matter, their only duty respecting the former issue is to determine whether they are in fact internal improvement bonds, and bear evidence of having been lawfully issued. It is conceded that these bonds were issued to aid in the construction of a railroad —a work of internal improvement — and were registered and certified to as the law required. It is only by reviewing the action of former officers, by which the bonds are shown to have been properly issued, that they can now say they were unauthorized. This, we think, they have no right to do. As to them, the questions confided to the judgment of and decided by their predecessors are res judicata, and not to be opened. Finding the old bonds thus authenticated, which they concede they do, the only additional inquiry respecting them, which they may enter upon, is to satisfy themselves by proper evidence that the new bonds conform to the formal requirements of the act authorizing such re-issue. This done, all that remains for them is the ministerial duty of registration and indorsement, as directed by the alternative writ.
Inasmuch as the answer does not question the correct
Writ awarded.
Dissenting Opinion
dissenting.
I do not dissent from the statement of the law in the syllabus of this case, but in my view the question at issue is entirely different from that stated therein. It appears from the pleadings that in the winter of 1875-6, and since our present constitution took effect, the county commissioners of Dakota county submitted to the electors of that county a proposition to issue county bonds to the Covington, Columbus & Black Hills railroad company, in the amount of $95,000,- being fifteen per cent of the assessed valuation of the county. This proposition was submitted at one election, and received more than two-thirds of all the votes cast, and was declared carried, and the bonds were thereafter issued and placed in the hands of a trustee, and have been delivered to the railroad company or its assigns.
The election for these bonds was held under the provisions of section 2, article 12, of the constitution, which reads as follows: “ No city, county, town, precinct, municipality, or other subdivision of the state, shall ever make donations to any railroad or other works of internal improvements, unless a proposition so to do shall have been first submitted to the qualified electors thereof, at an election by authority of law. Provided, that such donations of a county, with the donations of such subdivisions, in the
There is no statute in this state authorizing a county to issue its bonds in excess of ten per cent of the assessed valuation, and the constitutional provision above quoted does not confer the right to vote bonds, but merely places restrictions upon the power of the legislature, prohibiting it from ever authorizing the issue of such bonds in excess of fifteen per cent. The question here presented was before the court in the case of Reineman v. C., C. & B. H. R. R. Co., 7 Neb., 312, the opinion being written by the present chief justice, who, after copying the section above quoted, said: “It will not be claimed that, in the absence of any law, either statutory or constitutional, the electors of a county or municipality could impose an indebtedness of this sort that would be binding upon the inhabitants thereof. "Very clearly they could not. Neither will it be denied, we think, that in the absence of all constitutional restriction, the legislature could, by suitable enactment, authorize such aid in any amount which the people might see fit to vote. Indeed, until the adoption of our present constitution, this whole matter of municipal aid to works of internal improvement was within the sole control of the state legislature, and subject to no restraint other than such as that body in its wisdom saw fit to impose. This being so, the section of the constitution above quoted must be considered as restrictive only upon the exercise of legislative discretion in the authorization of county and municipal indebtedness, to aid in the construction of railroads and other works of internal improvement. It fixes the boun
Again, on page 313, he said: “We conclude, therefore, that until the legislature shall by suitable act change the existing statutory law so as to authorize it, there is no warrant for creating a county indebtedness in aid of internal improvements exceeding in the aggregate ten per cent of the assessed value of the taxable property within the county furnishing such aid. And further, that by the amendment of February 17th, 1875, such aid must have been authorized by at least two-thirds of all the votes cast on the proposition to extend such aid.” It was held that as the proposition was submitted as an entirety, and exceeded the statutory limit, the election was simply “ a void act, conferring no authority whatever upon the board of county commissioners to issue the bonds of the county in any amount whatever.”
The correctness of that decision has never, so far as I am aware, been questioned, nor can it be successfully. A county has no inherent right to issue commercial paper. It is a mere governing agency of the state, with certain powers distinctly specified in the statute. Now suppose such organization, without legislative authority, should issue its bonds to a railroad company to the amount of fifty per cent of its assessed valuation, would such bonds possess any validity? There would be a lack of power on the part of those executing the bonds that would render them invalid in whatever hands they might be found. The reason is, the county commissioners in issuing bonds act under a special power, and if they proceed without authority, their acts are simply void. Nor can it make any difference whether the bonds issued without authority of law
