duty of the courts to apply, and, in proper cases, to construe; but, when the meaning and intention of the legislature is clearly indicated by the language of the law, no construction is necessary.

To return to the section before us, can it be seriously questioned that it was the intention of the legislature to make it the duty of a prosecuting officer to indorse the names of the witnesses for the state, in each case, upon the information before the trial? Is the language used susceptible of any other meaning? The ingenuity of counsel has not enabled them to suggest any other meaning.

The law providing for prosecutions by information is not yet two years old in this state. It is an innovation which had been often suggested before it was adopted. With its undoubted advantage, it has been objected to, as placing too much power in the hands of the prosecutor. Probably foreseeing this objection, the framers of the law sought to throw around the rights of the accused under this method of prosecution every reasonable protection. Under the system of prosecution by indictment the grand jury was, in a sense, the accuser of every person brought to trial for a crime. So here, where the services of a grand jury are dispensed with, while the responsibility of the prosecution rests, in some sense, upon the shoulders of the prosecuting attorney, there is certainly some reason why there should be open to the accused some source of information as to the identity of the persons upon whose oath his conviction and punishment is about to be claimed at the bar of justice. It is claimed by counsel on either side, and is doubtless true, that the section of our statute now under consideration was, at least substantially, adopted from the statute of Michigan. That statute has been applied and construed, so far as its construction was necessary, by the court of last resort of the latter state before its adoption by us. Accordingly, as has been often said, in like cases, by this as well as other courts, we adopted the construction along with the statute. The case of People v. Hall, 48 Mich. 482, S. C. 12 N. W. Rep. 665, was before the supreme court of that state in 1882, involving this question. I quote from the syllabus: "In a criminal prosecution the names of witnesses cannot, against objection, be added to the information, without a showing that they were not known earlier, and in time to give defendant notice in season to anticipate their presence before trial." Again, but after the adoption of the law by us, the question came again before that court, in the case of People v. Quick, 25 N. W. Rep. 302. In the opinion they say: "We have held, on several occasions, that the defendant has a right to know in advance of the trial what witnesses are to be produced against him, so far as then known, and to have any new witnesses indorsed on the information as soon as discovered."

In the light of these cases I think the law can be administered so as to avoid the dangers so much deprecated by counsel. In cases where new witnesses become known to counsel, or are ascertained to be necessary after the information has been filed with such witnesses indorsed thereon as were known to him at the time of filing, it is only necessary that he make such a showing of the facts as will bring to the knowledge of the court that the prosecutor has acted in good faith, and that the additional witnesses are necessary for the due presentation of the case.

In the case at bar, the name of the witness McCaught must have been omitted by mere inadvertence; but no showing was made or attempted, and it seems to me that the judgment cannot be sustained without both overruling our own case, and invading the province of the legislative branch of the government.

The judgment of the district court is reversed, and the cause remanded for further proceedings in accordance with law. Judgment accordingly. (The other judges concur.)

STATE ex rel. CITY OF YORK v. BABCOCK.

(Supreme Court of Nebraska. January 6, 1887.)

1. MUNICIPAL CORPORATIONS-ISSUE OF BONDS FOR WATER-WORKS-ELECTIONS.

Section 69 of the Nebraska act relating to cities of the second class authorizes the submission to the electors of such city, by a resolution of the city council, of a proposition to issue the bonds of the city for water-works; and such submission need not be by ordinance.

2. SAME-TAX FOR WATER-WORKS.

The right of a city council of a city of the second class to impose a tax for waterworks is limited to five mills on the dollar on the assessed valuation of such city; and bonds issued for water-works bearing interest in excess of such limitation are unauthorized.

(Syllabus by the Court.)

Mandamus.

Scott & Gilbert and J. F. Hail, for relator. The Attorney General, for defendant.

MAXWELL, C. J. This cause is submitted to the court upon demurrer to the petition. The petition is as follows:

"The city of York, in the county of York, complains of H. A. Babcock, auditor of public accounts, and shows to the court

"(1) That the relator, the city of York, is a municipal corporation, duly organized under the laws of Nebraska for the government of cities of over one thousand inhabitants, and has been such organized city for more than one year last past.

"(2) That the respondent, H. A. Babcock, is the auditor of public accounts charged with the duty of registration of city and village bonds.

"(3) That on the first day of March, 1886, the assessed valuation of the city of York was more than three hundred thousand dollars, to-wit, $335,000. "That on the first day of March, 1886, at a regular meeting of the city council of said city, a petition was presented to the said council praying that it submit to the voters of said city, at the general city election to be held on the sixth day of April, 1886, a proposition to issue the bonds of said city in the sum of $30,000, for the purpose of erecting and maintaining a system of water-works in said city. And afterwards, at an adjourned regular meeting of said council, a motion was unanimously adopted submitting said proposition to the electors of said city, to be voted upon by them at the general election to be held on said sixth day of April, 1886; and the notice of election and proclamation were duly issued and published according to law; the said proclamation setting forth in full the proposition so submitted, a copy of which, with all the proceedings of the council up to and including the time of the issuance of the bonds in accordance with said proclamation, are hereto attached and made a part of petition, marked Exhibit A.'

"That at the general city election held in said city on the said sixth day of April, 1866, said proposition was voted upon by the electors of said city, and the returns of said election were duly canvassed by the mayor and council; at which election there were found to be cast 470 votes, of which number there were found to be cast in favor of said proposition 242 votes,-a majority of all the votes cast thereat. The result was thereupon, by the mayor and council of said city, declared to be that said proposition was adopted; and the proposition and the result were entered upon the records of the city.

"That on the twenty-sixth day of May, 1886, the mayor and clerk, by order of the city council, were ordered to cause to be issued the bonds of said city in the sum of $30,000, in denominations of $500 each, with coupons attached, to bear interest at the rate of six per cent. per annum, payable semi-annually

at the fiscal agency of the state of Nebraska in the city of New York. A copy of the proceedings of the city council authorizing the issuance of said bonds is attached to said Exhibit A, and is made a part of this petition.

"That, in pursuance of said proposition and the facts above set forth, the mayor and clerk, on the fifteenth day of June, 1886, proceeded to and did sign and execute said bonds; and afterwards, and before commencement of this action, presented the same to respondent as auditor of public accounts, under the provisions of an act to provide for the registration of city and village bonds, approved March 5, 1885, and requested that he certify upon said bonds that they have been regularly issued and registered in the office of the auditor of public accounts, and furnished to said auditor a transcript of all the proceedings, duly certified under the hand of the city clerk of said city and the seal thereof, and offered to pay said auditor the legal fees therefor; but the registration of said bonds by the respondent was refused.

That the said city has no indebtedness except its part of county and precinct bonds issued to aid in the construction of a railway through said county. "That the said city has no means to construct said water-works system, unless it can realize upon the bonds so as aforesaid issued; and it has made a contract for the sale of said bonds at a premium of $701, provided the said bonds be registered and issued according to law. The relator further shows that, so far as it is advised, the reason said respondent refuses to register said bonds, as he claims, is that the city council did not adopt an ordinance providing for the submission of the said proposition to the electors at the general election held in said city on said sixth day of April, 1886; but the relator contends that the law does not require the enactment of an ordinance, either to call a general election, or for the purpose of submitting the question of borrowing money to the electors at a general election, in cities of the second class of over one thousand inhabitants, to aid in the construction of waterworks.

"Therefore relator prays that the court issue a peremptory writ of mandamus, directed to H. A. Babcock, auditor of public accounts, commanding him forthwith to register and, under his seal of office, certify upon said bonds that they have been regularly and legally issued, and that they have been registered in the office of the auditor of public accounts in accordance with the provisions of law."

In the record of the proceedings of the city council the following appears in regard to the canvassing of the vote, declaring the result, and ordering the issuance of the bonds:

"On the twelfth day of April, 1886, at a meeting of the city council, the following, among other proceedings, were had, to-wit:

"YORK, NEBR., April 12, 1886.

"To the Hon. Council of the City of York-GENTLEMEN: This meeting is called for the purpose of canvassing the votes cast at the last city election, and allowing the officers-elect to qualify, so that the new council may organize for business. W. M. KNAPP, Mayor.'

“Very Resp'y,

"The whole number of votes cast, 470; of which there were cast for water bonds and tax, 242.

"It therefore appearing that a majority of all the electors voted for the water bonds and tax, the same was duly declared carried.”

And afterwards, on the twenty-sixth day of May, 1886, at a meeting of the city council, the following resolution was adopted unanimously;

"Whereas, it appearing that a majority of the electors of the city, at the general election held in said city on the sixth day of April, 1886, voted in favor of the proposition to issue the bonds of said city in the sum of thirty thousand dollars,

for the purpose of defraying the expenses of erecting a system of water-works for said city; and it appearing that the city council, at a meeting held for that purpose, declared that said proposition was duly carried: it is therefore hereby ordered that the mayor and clerk be, and they are hereby, authorized to be caused to be issued sixty (60) bonds of said city, of the denomination of five hundred (500) dollars each, with coupons attached, to bear interest at the rate, and payable at the times, specified in the notice and proclamation heretofore issued and published by order of the city council, and voted upon by the people at the general election held in said city on April 6, 1886, said bonds to be dated June 15, 1886."

There are two questions presented for consideration: First. Was the proposition properly submitted to the electors of the city of York? Second. If so, was the amount of tax to be levied thereunder within the limit fixed by the statute?

* ** *

Section 69, c. 14, Comp. St., provides that, "in addition to the powers hereinbefore granted cities and villages under the provisions of this chapter, each city and village may enact ordinances or by-laws for the following purposes: Tolevy taxes for general revenue purposes," etc.; "to provide for grading streets, construction of bridges, sewers," etc.; "to raise revenue by license tax on occupation," etc.; "to regulate the traffic in liquors,' etc.; "to make all such ordinances, by-laws, rules, regulations, resolutions, not inconsistent with the laws of the state, as may be expedient, in addition to the special powers in this chapter granted."

This twelfth subdivision, in effect, adds to the specific powers granted in the first part of this section the authority to proceed in all proper cases by "rules, regulations, and resolutions." There are many cases where, from the temporary character of the matter involved, it would seem to be unnecessary to pass a formal ordinance, such as the submission to the electors of a proposition for the issuing of water bonds. In such case the proposition, unless adopted by a majority vote, would possess no validity whatever. is simply what its name implies,—a proposition; and, unless adopted by a majority vote, would fail.

It

In the case at bar the proposition is conceded to be, and is, in proper form. It evidently passed the council by unanimous vote. It was treated by the electors of the city as a valid proposition, and adopted by a majority vote. The city council thereafter assembled in pursuance of law, and canvassed the vote, and declared the result of the election; and afterwards, on the twentysixth of May, 1886, the city council, by unanimous vote, ordered the issuing of the bonds. This body was charged with the duty of submitting the proposition, canvassing the vote, declaring the result, and, if the proposition carried, issuing the bonds. This power appears to have been duly exercised by that body in pursuance of the statute; and a mere irregularity in their proceedings, even had it been shown, would not affect the validity of their acts. We hold, therefore, that the proposition to issue the bonds of York city was properly submitted to the electors thereof.

2. The second question is a more serious one. The assessed valuation of the city of York was the sum of $335,000. The vote authorized the issue of, and it is now sought to compel the defendant to certify, bonds to the amount of $30,000, bearing interest at the rate of 6 per centum per annum. The statute limits the levy "of tax for water-works to an amount not exceeding five mills on the dollar in any one year on all the property within such city or village, as shown and valued upon the assessment rolls." This is a limitation upon the power of the city council, beyond which they have no authority to issue bonds. Hamlin v. Meadville, 6 Neb. 235; Reineman v. Covington, C. & B. H. R. Co., 7 Neb. 314. This point is not insisted on by the defendant; but the fact is apparent upon the face of the record, and is thus brought to the attention of the court. It is apparent that the issue is in excess of the

power of the city council, and that the defendant was justified in refusing to certify the same.

The writ, therefore, must be denied.

GIFFORD V. REPUBLICAN VAL. & K. R. Co.

(Supreme Court of Nebraska. January 6, 1887.)

1. RAILROAD COMPANY-APPEAL FROM AWARD OF DAMAGES FOR LAND TAKEN FOR RIGHT OF WAY.

The right of appeal from the award of commissioners in the assessment of damages sustained by an owner of real estate by the appropriation of the same to the use of a railroad corporation may be availed of and perfected by the filing of a transcript, from the county judge, of the condemnation proceedings, in the district court, or the office of the clerk thereof, within 60 days after the filing of the report containing such award with the county judge.

2. SAME-FILING TRANSCRIPT.

When such transcript is not filed, nor sufficient cause shown for such failure without laches on the part of the appellant, the appeal will be dismissed. (Syllabus by the Court.)

Error from Harlan county.

Lamb, Ricketts & Wilson, for plaintiff. Marquette & Deweese, for defend

ant.

COBB, J. This case arises upon an appeal from the award of damages to the appellant and plaintiff in error, caused by the taking of its right of way over his lands by the railroad company, defendant in error. It appears from the record that on the thirteenth day of May, 1885, application on behalf of the railroad company was made to the county judge of Harlan county for the appointment of six disinterested freeholders of the county, to be summoned to assess the damages to the owners of certain real estate therein described, including the lands of the plaintiff in error. On the same day the sheriff issued a suminons to the six persons therein named, for the purpose aforesaid, which summons was served and returned on the following day. It further appears that on the fifteenth day of May, 1885, the said commissioners made their report in case of each tract of appellant's land, and on the sixteenth day of May, 1885, the said reports were in each case filed in the office of the said county judge, and the amount of the damages, as assessed by the commissioners in each case, paid by said company to the said county judge for the use of the plaintiff in error.

There are in the record three notices of appeal by the plaintiff in error, one applicable to each of his separate tracts of land over which the right of way was assessed. These notices are addressed to L. H. Kent, county judge, are each dated July 8. 1885, one of them marked as filed in the office of the county judge, July 9, 1885. There are also three notices of appeal (one applicable to each tract) addressed to the railroad company, served on said railroad company, as therein certified, by delivering a copy thereof, in each case, on the tenth day of July, 1885, to one Frank Denninny, "the duly-authorized agent of said company.' These notices are marked as filed by the clerk of the disstrict court, July 15, 1885. It also appears that on the said fifteenth day of July, 1885, the said Gifford, plaintiff in error herein, filed a petition in the said district court applicable to the said assessment of damages for right of way over each of his said tracts of land.

At the September term of said court, on the twenty-ninth day of September, 1885, the said railroad company made a special appearance in said cause in said court, and objected to the jurisdiction of said court to entertain the said appeal, and to try said cause, for the following reasons: "(1) No transcript on appeal was filed within sixty days from the date of the assessment of dam