State ex rel. Village of Genoa v. Weston

67 Neb. 385 | Neb. | 1903

By the Commissioners.

This is an application for a mandamus to require tbe auditor to register bonds, in tbe amount of $3,500, for tbe extension of village water-works of the village of Genoa, in Nance county.

Tbe auditor objects to tbe registering of tbe village bonds which have been presented to him for that purpose on the ground that tbe history of tbe bonds, as filed in bis office, does not disclose a notice of election duly published in accordance with tbe terms of tbe ordinance calling tbe election. Tbe ordinance was adopted on the 27th day of June, 1902. It provided (section 3) : “Tbe village clerk shall cause to be published in the Genoa Leader for five consecutive weeks prior to the said election a notice of the special election to be held as provided in section one of this ordinance, together with the proposition and form of the ballots to be used at said election.” Section 1 of the ordinance fixed August 5 as the date of the election.

The first issue of the Genoa Leader after June 27 oc-eured regularly on July 4, the paper having been published on June 27. The first publication of the ordinance in question, therefore, fell upon July 4, and could not be sooner. This fact was known to the village board.

It is objected that five full weeks did not intervene between July 4 and August 5. The election was held on the date provided by the ordinance, and after five publications in the newspaper mentioned, but leaving from July 4, the day of the first publication, to the election, only thirty-two days. The auditor declined to register the bonds because of this alleged defect.

It must be conceded that under the decisions of this court upon various statutes, couched in similar terms, the Avords “for five weeks” must be c; is trued as meaning during five weeks, which would be thirty-five days. State v. Cherry County, 58 Nebr., 734, citing State v. Cornell, 54 Nebr., 647, and Lawson v. Gibson, 18 Nebr., 137.

The relator alleges that at most this is a mere irregularity ; that the statute provides for no form of notice and no particular publication; and that it has been held that an election may be called by an ordinance or a resolution, or motion of the board. State v. Babcock, 20 Nebr., 522. In this case it was by ordinance. The statute proA'ides for a publication of such proceedings, and on behalf of the relator the claim is made that no other notice of the election is, by statute, required; that the provision in the ordinance for special publication of notice was simply by way of abundant precaution, and that, a failure to comply with it strictly is not jurisdictional, and that it does not avoid the election or the bonds.

It is further contended that as the notice is a mere proceeding, inserted by the village authorities at their own desire, and not required by the statute, their intention must he interpreted by the surrounding facts, and especially in view of the fact that they knew the publication day of the newspaper, and that it could not be regu-larily published sooner than July 4. This fact evidently goes far to establish that the council, in passing this ordinance, merely intended to provide for five publications before the election. These five publications were all made. The only complaint now is that the first one did not occur quite thirty-five days before election. On these two grounds, — that the statute requires no special notice, and if none at all had been published other than the ordinance itself the bonds would be good, and therefore the failure to strictly comply with the ordinance would not avoid them, and the other ground, that, inasmuch as knowledge of the situation by the council when they passed the ordinance is conceded, it must be held to provide for only such notice as could be given within the time, and that therefore the five publications made are a compliance with it, — it would seem that the election and the bonds should be upheld. If it be held that the ordinance was not complied with, it would seem to be a mere irregularity, which could not vitiate the bonds, State v. Babcock, 20 Nebr., 522.

It seems to us that the absolutely essential things in municipal elections, as to the issuance of bonds, are those which the statute requires; that, these latter being present, the failure in some other particular will not be fatal unless it affects a substantial right of some party interested.

In this view of the case, we are compelled to hold with the contention of the relator, and it is recommended that the mandamus be issued.

W. G. Hastings, CHARLES S. LOBINGIKR, J. S. Kirkpatrick, Commissioners. By the Court:

For the reasons stated in the foregoing opinion, it is ordered that a peremptory writ of mandamus issue.

Writ .allowed.