concurring in part, and in the conclusion.
I do not like to burden the taxpayer with a liability which starts in an irregular way. The formation of the precinct was in pursuance apparently of an agreed plan to vote the bonds on the territory. There is nothing in the construction of a bridge which requires undue haste and irregular methods; and, while there was probably no intent to defraud, the method of forming the precinct was not for the general purposes of government, but to cause the bonds to be issued, which is only one purpose and therefore not in accordance with the general purposes of the law. The law calls for the creation of a precinct so that it may exercise all the legitimate functions of government for which a precinct is created. The petition to form the precinct was sworn to by William Ralston before the county clerk on the 1st day of December, 1910. It contemplated the formation of a precinct “to be called Riverside precinct.” Up to that time there had been no such precinct. On that same day, December 1, 1910, the board of county commissioners of Dawson county met to create this particular proposed precinct. On that day the board granted the petition as petitioned, and the new precinct was constituted to include the sections described in the petition; said precinct to be known as “Riverside precinct, Dawson County, Nebraska.” The board then adjourned to meet December 15, 1910. At this meeting on December 15, 1910, the board considered the matter of voting the bonds in question. It found that the petition was signed “by more than 50 resident freeholders of said Riverside precinct.” It provided for the submission of a proposition to vote the bonds at an election to be held in February, 1911. The proposition proposed to be submitted was for the delivery of $12,800 in bonds to a bridge company with a capital of $250.
The- first question to be considered is the organization of the precinct.
(a) Was it legal to organize it for the express purpose of voting bonds to build a bridge? A precinct is *25not a municipality, and the creation of a precinct ought only to he contemplated for the legitimate purposes for which it may exist. It can only act through and by means of the board of county commissioners or. supervisors who are trustees on behalf of the .people who live in the precinct. A precinct is not a legal entity having the power to act. It does not act on its own account. The thing done was done by the board of county commissioners, and the men who prepared and presented the petition to them must have known at the commencement that there was no municipality asking for the creation of these bonds. A precinct is a mere territorial division. State v. Dodge County, 10 Neb. 20.
(b) The meeting was called November 18, 1910, by the deputy county clerk. He had not been ordered to call it by the board or by his principal, the county clerk. I do not understand that he had the power to substitute himself for his principal, or of substituting himself for the board of county commissioners. He was only their clerk. According to the testimony of the county clerk there was no order from the board to call the meeting. I am not satisfied that the board had any jurisdiction to act under the circumstances.
(c) There is another reason why it would seem that there was no jurisdiction to proceed. There was nothing before the board; that is, there was nothing in the office in the shape of a petition to the board at the timo it is claimed that this deputy county clerh acted. And how could he act unless there was a petition, even though it be admitted that he might otherwise have the right to act. Under the statement made, with nothing in the office, with nothing pending, he makes the order. It is analogous, seemingly, to the issuance of a summons by the clerk of the district court when no petition has been filed.
(d) The county board changed the lines of the precinct for the special purpose of enabling the voters who would thereafter be in the precinct to carry the bridge bonds. They gerrymandered the territory. Section 7, ch. 35, Gen. St. 1873, provides: “Any precinct in any or*26ganized 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.” This only means what it says. It does not mean that any power is conferred upon the precinct as a political body. The act in question contemplates that the board of county commissioners of the county will issue the bonds if the vote justifies such issue. It does not mean that the board may change the boundaries so that a majority may be obtained in favor of their issue. In Morton v. Carlin, 51 Neb. 202, the board of county commissioners of Otoe county changed the precinct boundary of Nebraska City and put into the precinct a large number of sections with a view to accomplishing certain results. It was held that counties and county boards can exercise only such powers as are expressly conferred upon them by statute, and that such grant of powers must be strictly construed. State v. Lincoln County, 18 Neb. 283. It was further held that the change of the precinct boundaries of Nebraska City was without jurisdiction and void, and that the bonds issued were without authority of law, and there was an injunction restraining the levy of taxes. This court is as much bound now as it was then to see that such a thing as this is not done. County commissioners can legally transact county business at a regular session of the county board, or when specially called by the county clerk, of which special meeting notice is given in the mode provided by law. Morris v. Merrell, 44 Neb. 423. The object of calling the commissioners together should be stated in the notice. Commissioners v. Kent, 5 Neb, 227.
(e) It does not appear what the corporation, which is organized with a capital of $250, is going to do, except that it seems willing to receive $12,800 in bonds from Riverside precinct. It does not appear from the election proclamation that this corporation is going to have a toll bridge, or that it is going to donate the bridge to the public. The only question submitted is: “For *27bridge bonds and tax.” “Against bridge bonds and tax.” It is true that tbe bridge company agreed to give a bond “to apply the proceeds thereof to the construction of the said bridge,” but that determines nothing as to whether the bridge is to be a toll bridge or a free bridge. The petition for the election is equally silent. By the articles of incorporation the business to be transacted shall be the construction and operation of a wagon bridge across the Platte river at a point between sections 5 and 8, in township 10 north, of range 24 west of the sixth P: M. The bridge company is authorized to collect tolls, “if necessary,” and may sell and convey the bridge after it is constructed. The sum of money proposed to become a lien against the taxable property of the precinct should be carefully guarded. For anything that appears in the proceedings there is nothing to prevent the bridge company from selling out to an irresponsible party who might allow the bridge to run down and become a wreck,
(f) The condition put in the bonds is, “shall said bonds be delivered to the said bridge company on its giving bond, to be approved by the board of county commissioners, to apply the proceeds thereof to the construction of said bridge.” It will be seen that there is no condition in the bonds further than “to apply the proceeds thereof to the construction of said bridge.” There is nothing about turning the bridge over to the public, or about maintaining it for the use of the public. Neither is there anything about maintaining the bridge as a toll bridge or as a free bridge.
(g) I am not able to say that there is no public road leading to or from said proposed bridge. There is no road across the stream. The bed of the stream belongs to private parties.
An examination of the cases of George v. Cleveland, 53 Neb. 716, and Nash v. Baker, 37 Neb. 713, will show that this court, in the protection of the taxpayer, has stood upon the letter of the law. The corporation was organized as a private corporation. Apparently it was organized for the benefit of the stockholders. In the cases *28last above cited it will be seen that this court has insisted that the purpose should be one authorized by law, and, otherwise, that the bonds will be enjoined.
(h) Whether the precinct was ever organized may well be doubted. One of the petitioners, Mr. Oostin, was a member of the board of county commissioners. Did he have a right to sit in judgment on his own case? The testimony shows “he was active in getting up this Riverside precinct.” He seems to have made a speech, in which he said “he had looked into the matter further than anybody else; he told us his proposition for getting the bridge; he said the bond proposition .was the only one that would succeed; * * '* the first thing he said we would have to have a majority of the voters in the proposed territory to sign a petition to have the district set off; then to have a petition with 50 freeholders calling for a bond election, and if the election carried for the bonds we would go ahead and build the bridge and then turn the bridge over to the county, and, after the county had accepted the bridge, the territory would be returned to the original precinct” When he was asked why the six sections on the east had not been taken as well as on the west, as they were as close to the proposed bridge as the rest, he said: “We were laying off! a precinct to carry for bonds.” This is not denied; the other witnesses corroborate it. Jerry Oostin testified: “I presume the object was to form a precinct there to build a bridge, that was as far as I know.”
In Nash v. Baker, supra, the trial court made a finding that the representations of the promoters could have ^deceived no one in view of the actual facts, but this court held that there was deception nevertheless, and enjoined the bonds. In that case bonds were to be issued for the construction of a railroad from Kearney to Callaway. The promoters represented that the road to be constructed would be an independent line of railway, and that there was a president and other officers who lived at Kearney. The trial court took the view that the proposed railroad could not be an independent road, and that everybody *29must take notice of that fact because it was in the center of the continent, 700 miles from a waterway, and with no power of exit except over the Burlington or Union Pacific, and that it could do nothing except by a traffic arrangement, and that these facts must be apparent to everybody, and therefore that there was no deception. In George v. Cleveland, supra, this court was equally zealous in protecting the taxpayer, and enjoined the bonds.
While everything that was done may have been done in the utmost, good faith, the protection which the statute seems to require has been denied to the taxpayers of the precinct. I concur with the majority opinion to tbf» extent that the bonds ought not to be issued.