Logan v. City of Bismarck

BeoNsoN, Oh. J.

(dissenting). This cause has been presented upon stipulation out of term time and without full opportunity for argument and consideration. It is unfortunate, that, through the urgent situation existing and the request of the parties that prompt action be taken, full argument and consideration may not be had. I am of the opinion that the question submitted to the voters, namely, shall the city issue bonds for the purpose of constructing or purchasing waterworks, is a double question and falls within the inhibition of the rule announced in Stern v. Fargo, 18 N. D. 289, 26 L.R.A.(N.S.) 665, 122 N. W. 403. In that case this court said: “Our whole election system, whether it relates to candidates or public improvements or works, is built up and founded on the fundamental principle that every elector shall be given the opportunity to vote for or against any candidate, or any proposition, independent of and separate from his vote for or against any other candidate or proposition.” Further, in the cited case, this court quoted with approval language from the case of Leavenworth v. Wilson, 69 Kan. 74, 76 Pac. 400, 2 Ann. Cas. 367, and, in particular, as follows: “Since, therefore, no bonds may be issued for any purpose, or for any set of purposes, unless the people be consulted and give their consent, every voter must have a fair opportunity to register an intelligent expression of his will.” Guided by these principles, and upon logical grounds, I am therefore of the opinion that the question submitted in the instant case may not be termed single. Can it be properly said that the real question submitted was, — Shall the city issue bonds for the purpose of providing a system of waterworks ? If a question in such form had been submitted would there be any question about its illegal character ? The statute permits the city to purchase, erect, lease, rent, manage and maintain any system of waterworks. Sess. Laws, 1921, chap. 34. The Constitution permits the bonding of a city for the purpose of constructing or purchasing waterworks. N. D. Const. § 183. Assuredly, an authorized bond issue does not comprehend leasing or renting a waterworks system. If the voters had authorized a bond issue for constructing a waterworks system, manifestly, it would not have authorized the purchase of an existing *1188system. Again, if tbe voters bad directed a bond issue for tbe purchase of a waterworks system, tbe bonds or tbe proceeds thereof could not be used for tbe construction of a waterworks system. May it be urged logically that, since, tbe proposition submitted to tbe voters in tbe instant case is single, tbe city is authorized to use tbe bonds or tbe proceeds thereof to both construct and purchase a waterworks system? Yet tbe issue as submitted to tbe voters requires either a purchase or a construction. Two propositions are involved; either, a construction, or a purchase. A bond issue may be authorized for construction; a bond issue may be authorized for purchase. Tbe two propositions are dissimilar; tbe constitutional and statutory statement in tbe alternative emphasizes tbe dissimilarity. Hence, if the discretion is placed in the people requiring tbe sanction of a favorable vote to authorize tbe bond issue, this discretion must express itself upon a definite proposition and purpose and may not be delegated to those to whom it has not been entrusted. Leavenworth v. Wilson, supra; Cain v. Smith, 117 Ga. 902, 44 S. E. 5. Furthermore a rule of strict construction applies to tbe proceedings in tbe case at bar; Stern v. Fargo, supra. Tbe voters have directed a bond issue payable one twentieth each for twenty years with interest at 5 per cent per annum; tbe ordinance involved has changed tbe yearly payment so as to permit the issue of bonds in the denomination of $1,000 each, again a double proposition was submitted to tbe voters; either tbe bonds bad to be issued in tbe denomination of $1,000 each or in part for a lesser amount; or tbe percentage of payments per year bad to be varied: Again, through an ordinance, those to whom this discretion was not given seek to exercise such discretion. In my opinion, regardless of tbe deserving character of tbe project contemplated, tbe rule of 'law, as I see it, should be applied and an injunction awarded.