State ex rel. Bowen v. Adams County

Maxwell, J. This is an original application for a mandamus to compel the county commissioners of Adams county to levy a tax to pay the interest on a certain bond for the sum of $500,'issued by them for Juniata precinct in Adams county. It appears from the application that in the year 1872 the county commissioners of Adams county submitted to the electors of Juniata precinct the question of issuing the bonds of the precinct to the amount of $6,000, to aid in the construction of a public steam grist mill. The proposition was adopted, the bonds issued, the mill erected, and, so far as appears, the parties operating the same have fully complied with the terms of the proposition. The only question for determination therefore is, whether a steam grist mill is a work of internal improvement within the meaning of the statute. In Traver v. Merrick County, 4 Neb., 327, it was held that a water grist mill erected for public use, the rates of toll to be determined by the county commissioners, and being subject to regulation by the legislature, was a work of intamal improvement within the meaning of the act of 1869, and that bonds voted to aid in its construction were valid. The decision in that case is based almost entirely upon the statute authorizing the condemnation of pi’ivate property for the purpose of erecting dams and overflowing lands in order to obtain power to propel mills, and upon the decisions of this court in Nosser v. Seeley, 10 Neb., 460, and Seeley v. Bridges, 13 Id., 547. John II Ames and A. H. Bowen, for the relator. O. B. Uewett, for the respondent. In Traver v. Merrick County, it is said (page 334): “There is a clear distinction between aiding the development of the water power of the state — a power which is continuing in its nature, and may be used without cost or expense, and must be used at certain points on a stream where a. dam can be erected and power obtained — and a mill propelled by steam that must be attended with a continuous cost for fuel, and may at any time be removed to another locality.” But for the provisions of the statute authorizing the exercise of the power of eminent domain in behalf of water mills, and thereby placing their regulation under legislative control, they would not be held to be works of internal improvement. It is true that many benefits flow to a community from the erection of a steam grist mill in their midst. But the same may be said of any other manufacturing establishment. It is not every work that is beneficial to the public that is a work of internal improvement within the meaning of the statute. The writ must therefore be denied. By the court, Writ denied.