Union Pac. R. v. Merrick County

DILLON. Circuit Judge. This is a bill by the Union Pacific Railroad Company, as the [645] owner of a very considerable portion of the taxable property within the county of Merrick, to restrain the county commissioners of that county from issuing §125,000 of the bonds of the county to the Midland Pacific Railway Company pursuant to a vote of the people of the county, at an election held on the 30th day of August, 1873. The cause is before the court on final hearing upon the pleadings and proofs. See Union Pac. R. Co. v. Lincoln Co. [Case No.\14.380], as to restraining the issue of bonds by public corporations. The counsel for the plaintiff relies mainly upon two grounds for the relief sought. These will be briefly noticed. The first is that no copy of the question submitted to the voters of the county was posted up at the place of voting during the day of election in Lone Tree precinct, the town of Lone Tree being' the county seat, and that precinct giving in favor of the proposition a larger vote than the majority for the proposition throughout the county, thus controlling the result. We held on demurrer to the bill that the law of Nebraska made it essential to the regularity of the vote that “a copy of the question submitted should be posted up at the places of voting;’" but the proofs quite satisfactorily show that the law was complied with in this respect. It is conceded that a copy of the question was posted on the front door of the court house building (in one of the rooms in which the election was held), and was the usual place for posting official and legal notices; and the evidence also tends very strongly to show that another notice was posted on the door of the very room (the sheriff’s office) in the court house in which the election was held. This ground of relief, therefore, falls upon the proofs. The next ground relied on by the complainant is that “the proposition or question submitted involved three distinct subjects to be passed on, and consequently the submission was illegal. First, the construction of the railroad to Lone Tree. Second, the establishment of the depot at a particular Iliaco. Third, the construction of a wagon bridge over the Platte river." In support of this position, counsel rely upon Lewis v. Commissioners of Bourbon Co. (decided by the supreme court of Kansas, 1873) 12 Kan. 186, and upon Board of Sup’rs of Fulton Co. v. Mississippi & W. R. Co.. 21 Ill. 338; People v. Tazewell Co., 22 Ill. 147; Clarke v. Board of Sup’rs of Hancock Co., 27 Ill. 310; and McMillan v. Lee Co., 3 Iowa, 311. Without examining or questioning these cases, our opinion is that the present case does not fall within the principle they assert. There were not three distinct propositions submitted or three separate projects sought to be aided. On the contrary, only one propostion was submitted, viz.: to vote aid to the extent of $125.000 to the Midland Pacific Railway Company; but this aid was to be upon condition that the depot of the company should be located within one-fourth mile of the court house of the county, and upon the further condition that the company would so construct its railroad bridge over the Platte river, that it might be used as a wagon bridge, and would agree that it might be so used for ten years, and to that end would keep it in repair during that period. These conditions are reasonable in themselves, and such as the county authorities might, in their judgment, require. They are conditions obviously in the interest of the county, and if the vote would have been valid without them, we cannot see why they render it illegal. Pacific R. Co. v. Leavenworth [Case No. 10,649]; Northern Cent. R. Co. v. Mayor, etc., of Baltimore, 21 Md. 93; Phillips v. Town of Albany, 28 Wis. 340; Lawson v. Milwaukee & N. R. Co., 30 Wis. 597; Rhey v. Railroad Co., 27 Pa. St. 261; Id. 318. The law of the state on the subject of voting aid to railways has been sustained by the supreme court of the United States as valid in the Otoe County Case. We may-doubt the wisdom of the enactment, "but being valid we have no right to overthrow it; and as the law in the ease before us seems to have been complied with in all essential particulars, we see no ground on which we would be justified in restraining the issue of the bonds which a majority of the people of the county have voted. Bill dismissed.