Harcourt v. Good ( 1873 )

Ogden, P. J.,

on application for rehearing.—W e have examined the brief of the appellant filed in support of his motion for a rehearing in the cause.

It is conceded that the constitutional question presented on the orginal hearing has been correctly decided by the court; but it is maintained that the statement of the case as given in the opinion rendered by Mr. Justice Walker was inaccurate, and that by that reason a strong point relied on by the appellant was entirely overlooked.

It is true, the opinion of Mr. Justice Walker treats the case as though the police court had ordered the election holden in the whole county, while in fact the election was only ordered for, and was only held in, the town of Columbus.

We do not perceive, however, that this fact makes any difference in the practical or legal result. Let us look at the facts. A large number of the taxpayers and citizens of the town of Columbus petitioned the police court of the county in which the town of Columbus is situated, to order an election to take the sense of the qualified voters in the town, whether they tax themselves for the purpose of aiding in the building of a railroad bridge across the Colorado river at that point. The election was by the police court of the county ordered, and was held under the same rules and regulations which then governed elec-' fions in the State; the vote was declared in the usual form, and the whole proceeding seemed to be fair, and the ' result was in accordance with the general wish of those interested.

The authority under which that election was held, is. contained in Ordinance Ko. 10, passed by the Constitutional Convention of 1866.

The ordinance is as follows:

“ Sec. —. Any county, city or town of this State, may become a stockholder in, or loan its credit to, any company, association or corporation; provided, two-thirds of the qualified electors of such county, city or town, voting at an election held therein, under rules and regulations prescribed by law, assent to the same.”

There were not in existence, in our statutes, any rules and regulations prescribed by law for the specific kind of election contemplated in this ordinance; and it must be presumed that the legislative intent was that the rules and regulations prescribed by law for general elections should be followed. That the election, ordered as this was, and conducted as this was, was a compliance with the ordinance, we entertain no doubt.; and we are not prepared to-say that the election would not have been good if the election had been ordered by a town meeting, but conducted in all respects in accordance with the rules and regulations prescribed by law for general elections. The point to be arrived at was the expressed wish, by a vote of the people, whether they desired to take the stock in question, and to aid in building the bridge.

Rehearin» refused.