State ex rel. City of O'Neill v. Marsh

J jETTON, J.

This is a mandamus proceeding brought to compel the auditor of public accounts to register certain bonds of the city of O’Neill in the sum of $19,000 issued for the purpose of maintaining and extending the water-works of the city. The respondent refused to register the bonds for the following reasons: First, that the bond election was called by the council by the adoption of a resolution, and not by the passage of an ordinance. While there have been some slight changes in the statute since the decision in State v. Babcock, 20 Neb. 522 , we are convinced that the changes do not materially alfect the question presented, that the reasoning of that case still applies, and that the council had power to call the election bv resolution. Second, that the notice, which called for the election to be held at “the regular polling places in said city,’’ was defective, and was not sufficient notice to the electors of the locality of the'polling place. This identical question was presented in Hurd v. City of Fairbury, 87 Neb. 745 , and was decided against the respondent’s contention. The decision governs in this case.

Further complaint is made that the history presented does not show the appointment of judges and clerks of election; In the absence of affirmative evidence to the contrary, the court will presume that the judges and clerks were either legally appointed or were de facto officers. A peremptory writ of mandamus is allowed as prayed.

Writ allowed.