Osborn v. County of Adams. OSBORN V. THE COUNTY OF ADAMS. (District of Nebraska. January, 1881.) 1. ELECTION PRECINCT, CANNOT BE SUED.- An election precinct has no corporate existence, and can neither sue nor be sued, under the laws of this state. 2. MANDAMUS ONLY ISSUES AFTER JUDGMENT.—A mandamus cannot properly issue out of the federal courts until after a claim in dispute has been reduced to judgment. 3. COUNTY MAY BE SUED TO ENFORCE VALID PRECINCT BONDS.- A suit can be maintained against a county to enforce the payment of a bond voted by and issued for a precinct to aid in works of internal improvement when such bonds are authorized by law. 4. BONDS TO AID THE ERECTION OF STEAM GRIST MILL INVALID.-There is no law in Nebraska that authorizes the precincts to vote, or the county commissioners to issue bonds for and on behalf of a precinct, for the purpose of aiding in the erection and construction of a steam grist mill, and bonds issued therefor are simply void. Suit on coupons detached from precinct bonds, issued to aid in the erection and construction of a steam grist mill. Demurrer to the petition. The facts are sufficiently stated in the opinion. A. H. Bowen, for plaintiff. John M. Ragan, for defendant. DUNDY, District Judge.-This suit is based upon one hundred and twenty-two coupons, each for the sum of twenty-five dollars, which were detached from a series of bonds of five hundred dollars each, voted by the people of Juniata precinct, and issued for and on behalf of said precinct by the county commissioners of Adams county, to aid in the erection of a steam grist mill. It is shown by the petition that on the 26th day of November, 1872, an election was held in said precinct, at which time bonds to the amount of six thousand dollars were voted, and that on the same day bonds were issued in that sum for the purpose aforesaid. That the bonds and VOL. II-7 Osborn v. County of Adams. coupons were purchased by the plaintiff before due, without notice and for a valuable consideration and that the same are wholly unpaid. The defendant demurs to the petition and two important questions are presented for consideration by the demurrer: First. Has the court jurisdiction to hear and determine the matter in dispute between the parties, and Second. Do the facts stated in the petition constitute a cause of action, and justify a recovery against the defendant, or rather against the precinct represented by the defendant? The defendant has not seen proper to state just why the court is without jurisdiction in the premises, but I conclude that it is because of the supposed want of authority to proceed against a county to enforce the payment of a bond issued on behalf of a precinct. It is clear enough that the laws of this state authorize the qualified voters of an election precinct to vote for the issuing of bonds for specified purposes, and when properly voted they are to be issued by the county commissioners of the county in which the precinct may be situated. It is equally clear that an election precinct formed under the laws of this state has no corporate existence. Such a political subdivision is formed for mere convenience of voting. It cannot sue or be sued, because it has no officers of its own to prosecute or defend a suit. The supreme court of this state has given an authoritative exposition of the law upon this subject, and that must be deemed conclusive until otherwise decided by the highest judicial tribunal in the land. This court, too, at the present term has held the law to be as here stated. Blair v. West Point Precinct, U. S. C. C. Neb. Chandler v. Dodge County, 10 Neb. 20. As a general rule, when and where a right exists, the law furnishes an adequate remedy to enforce the same when it is in any way impaired or impeded. It is conceded that precinct bonds may be lawfully issued for some purposes. If that be true, it necessarily follows that a remedy must exist to enforce the payment thereof, and if the precinct itself cannot be sued, Osborn v. County of Adams. though primarily liable for the payment of the bond, then reason, it would seem, must point directly to the officers who execute the bonds as the ones who must respond on behalf of the precinct. And more especially is this so where a mandamus cannot be issued until after a proper suit has been instituted and the claim reduced to judgment, as seems to be required by all the federal courts. Indeed, whatever may be thought or said of the propriety of sustaining an action against a county to enforce payment of a precinct bond, the question must be regarded as no longer open to argument in this court. Ever since the decision of the case of Chandler v. The County Commissioners of Dodge County, brought in this county, the right to sue a county to recover on a precinct bond has been sanctioned and upheld. This case went to the supreme court where the judgment was affirmed, though the question here under consideration was not raised in the supreme court. The case of Blair v. West Point Precinct, before referred to, is authority on this point. The demurrer draws in question the validity of a precinct bond issued to aid in the erection and construction of a steam grist mill, and if the bonds from which the coupons in suit were detached cannot be upheld under the provisions of the "internal improvement law" of the 15th of February, 1869, then the bonds must fall, and this suit with them. There is no other law or part thereof conferring the right on electors of a precinct to vote bonds for any purpose. Section 1 and section 7 of this act are as follows: "Section 1. That any county or city in the state of Nebraska is hereby authorized to issue bonds to aid in the construction of any railroad or other work of internal improvement, to an amount to be determined by the county commissioners of such county, or city council of such city, not exceeding ten per cent. of the assessed valuation of all taxable property in said county or city. Provided, the county commissioners or city council shall first submit the question of the issuing said bonds to a vote of the legal voters of said county or city in Osborn v. County of Adams. the manner provided by chapter nine of the Revised Statutes of the state of Nebraska, for submitting to the people of a county the question of borrowing money. "Section 7. Any precinct in any organized county of this state shall have the privilege of voting to aid works of internal improvement, and be entitled to all the privileges conferred upon counties and cities by the provisions of this act; and in such cases the precinct election shall be governed in the same manner as is provided in this act, so far as the same is applicable, and the county commissioners shall issue special bonds for such precinct, and the tax to pay the same shall be levied upon the property within the bounds of such precinct. Such precinct bonds shall be the same as other bonds, but shall contain a statement showing the special nature of such bonds." The language here employed to confer the authority is, "to aid in the construction of any railroad, or other work of internal improvement." Is a steam mill a work of internal improvement, within the meaning of the law above quoted? The first section of the act referred to specially describes railroads, and then uses the general term or phrase, "or other works of internal improvement." There is a long line of authorities which seem to settle very effectually this doctrine, to wit: That where a law or written instrument is couched in specific and definite language and special authority is conferred for doing particular things, and then a general authority is thereinafter given, the general authority so conferred must be held to relate to matters similar to the ones specially described. Applying the principle here stated to the construction of the law under which the bonds were voted, all reasonable doubts of their validity will at once cease. It would then be equivalent to saying that bonds may be voted to aid in building railroads and other works or internal improvements of a similar nature. This would perhaps authorize the voting of bonds to aid in the construction of canals, bridges and wagon roads, as well as railroads. All these Osborn v. County of Adams. objects would facilitate the transportation of persons and property from place to place, and would promote the great objects had in view by the legislature when the said law was enacted. In giving the law this construction we do no violence to language or principle. So far as known, no court in this state has gone beyond the principle of construction here applied. It has been held in several cases, that the right to erect public buildings, such as jails and court houses, derives no support from the law before cited. See U. P. R. R. v. Lincoln County, 3 Dillon, 300; Dawson County v. McNamar, 10 Neb. 276; Lewis v. Sherman County, decided at the present term of court. And this seems to be the settled law in this state. Yet in some of the authorities outside of the state, court houses and jails are held to be "internal improvements" to which public aid may be voted under laws similar to our own. But the statute law in every case where the voting of bonds is specially authorized is essentially different from the one under consideration. But it is claimed that the case of Township of Burlington v. Beasley (IV Otto, 310), decided by the supreme court of the United States, is also decisive of the controversy involved in this suit. I think otherwise. Applying the same principle to both cases we would arrive at the same conclusion reached in either. The case last referred to originated under the internal improvement law of the state of Kansas. That law specially authorizes "counties, incorporated cities and municipal townships, to issue bonds for the purpose of building bridges, aiding in the construction of railroads, water power and other works of internal improvement." The Kansas law is much more comprehensive and liberal than the law of this state. It authorizes the voting of aid for specific purposes where our law is silent. It confers ample authority for certain purposes while our law withholds it. Authority is given to aid in developing water power in Kansas, but in this state the legislature has withheld the right so to do. And so far as known, no one has, until recently, |