Union Pac. R. v. Lincoln County

24 F. Cas. 637 | U.S. Circuit Court for the District of Nebraska | 1873

DILLON, Circuit Judge.

Upon consideration we hold:

1. That the act ot the legislature of the state of Nebraska, of February 15, 1869, and the amendatory act of March 3, 1870, which authorize “any county or city to issue bonds to aid in the construction of any railroad, or other work of internal improvement,” have no application to the issue of bonds by a county for the erection of public buildings therein; and, therefore, the legality of the proposed issue of bonds by the county in the case at bar can derive no support from these enactments.

2. That the only authority for the issue of such bonds in this state is that which is recited in the bonds here proposed to be issued, viz. sections 19-28, c. 9, of the Revised Statutes of the state.

3. Section 19 gives the county commissioners “power to submit to the people of the county, at any regular special election, the question whether the county will borrow money to aid in the construction of public-buildings. ” The mode of submitting is prescribed in section 21, and section 22 provides as follows: “When the question submitted involves the borrowing of money, the proposition of the question must be accompanied by a provision to levy a tax for the payment thereof in addition to the usual taxes, and no vote adopting the question proposed shall be valid unless it likewise adopts the amount of tax to be levied to meet the liability incurred.” “Sec. 23. The rate of tax levied shall in no case exceed three mills on the dollar on the county valuation in one year. When-the object is to borrow money to aid in the erection of public buildings, the rate shall be such as to pay the debt in ten years.”

It is our judgment that the legislative intention here is to require the debt created to borrow money to erect public buildings to be paid in ten years, and the requirement expressly is that a rate of tax shall be voted and levied sufficient to pay the debt within that period. This provision is defeated if the county may vote to create a debt payable in twenty years, and to levy an. annual tax during that period, and such was the proposition which was, in this instance, submitted to, and adopted by, the voters. If the tax is raised in ten years sufficient to pay the debt, the debt ought to be such an one as that the tax may be applied to its payment, for the tax is “specially appropriated and constituted a fund distinct from all others” for this purpose. A construction of this legislation is not admissible by which money to pay the debt may be raised years before the debt itself is payable.

NOTE. In the case of the same plaintiff, at the same term, to restrain Herrick county from issuing railway aid bonds, under the act of February 15,1869, the court, on demurrer to the bill, held, under section 21 of the Revised Statutes of I860, even where the notice of the question submitted to the voters of a county was published in a newspaper, that it was essential to the validity of the vote that “a copy of the question submitted should be posted up at the places of voting ” In this case it was alleged that the notice was not thus posted at the place of voting, in a town, the vote in which controlled the result in favor of the proposition. See Union Pac. R. Co. v. Merrick [Case Ño. 14.383]. [See, alsr, Cases Nos. 14.378 and 14,379, for suits brought by same plaintiff against same defendant.]

As this is decisive against the right of the county commissioners to submit, or the people to adopt, the proposition for the issue of bonds to run twenty years, it is not necessary to notice the other grounds for the injunction presented in the bill. It may be that if these bonds were issued and in the hands of bona fide holders for value, they could be enforced against the county; but the issue of such bonds will be enjoined upon proper application, when the statute in matters of substance has not been complied with. An order will be entered denying the motion to dissolve the injunction heretofore allowed, and continuing the writ in force. Ordered accordingly.-