#### Wilson Hoxie et al., appellants, v. Barrett Scott, Treasurer, et al., appellees.

Filed May 22, 1895.

No. 5007.

Township Bonds: Validity or Election: Jurisdiction or County Commissioners. Under section 14, chapter 45, Compiled Statutes, it is necessary, to confer jurisdiction upon county commissioners to order the holding of an election on a proposition to vote bonds by a township in aid of a work of internal improvement, that a petition should be presented to such commissioners signed by not less than fifty freeholders of such township.

Appeal from the district court of Holt county. Heard below before Crites, J.

*H. E. Murphy,*for appellants.

*Seevers & Seevers, M. F. Harrington,*and *E. W. Adams, contra.*

Ryan, C.

The appellants, by their petition filed in the office of the clerk of the district court of Holt county, sought to enjoin the collection from themselves of certain taxes levied to pay upon the interest and a part of the principal of certain bonds issued for Gratton township, in Holt county, by the authorities of said county. These bonds, thirty-six in number, for $1,000 each, were issued August 1, 1890, to the Nebraska *&*Western Railway Company, or bearer. The facts upon which the cause was determined in favor of the appellees were agreed upon and stated in a written stipulation signed by both plaintiffs and defendants. There seems to be some reliance by appellees upon the conceded fact that before the maturity of the first coupon which fell due these bonds were sold and transferred by the *200railroad company to purchasers who bought with only such notice as by the records and the law was of necessity imputable to them. If the status of these purchasers is-such that the irregularity hereinafter referred to could not affect their rights as *bona fide*holders of the above bonds, our conclusion will in no way conclude them. If, on the other hand, the result must be such that the validity of the bonds for any purpose, and by whomsoever held, shall of necessity be declared impossible, the question of purchase of these bonds in good faith may incidentally become one of little or no practical importance. We shall not assume to pass upon the rights of holders of the bonds as *bona fide*purchasers, because these parties are not in court. The proposition upon which this appeal must be determined must be considered as though there had been no sale of the bonds by the railroad company, for, under the stipulation of facts which must govern, this is the only proper subject of inquiry. The following language is quoted from this stipulation of facts: “It is admitted by the defendants in this case that the fifty-two-names signed to the petition requesting the county board to submit to the electors of Gratton township the proposition to issue these bonds,” and that “ only thirty-five of said fifty-two persons were actually freeholders in Gratton township,” etc. It is not perceived why the word “actually” was used with the word freeholders, for its effect was not. to qualify that descriptive term. This is especially true in view of the rule that “if taxes are to be imposed upon the whole body of taxpayers by a vote of a certain proportion of them for the purpose, not of exercising any legitimate function of government, but solely for the purpose of making a gift in aid of an enterprise grozsi-publie in its nature, but still of a business character, it is the duty of courts to see that such power is not abused; that the donees bring themselves within the strict terms of the grant, and that the donors receive precisely what they *201bargain for.” *(Nash v. Baker,*40 Neb., 294.) Our concern now is with that part of the stipulation in which the defendants, in effect, conceded that only thirty-five signers of the petition for the election, pursuant to which the bonds were issued, were freeholders. It is required by the provisions of section 14, chapter 45, Compiled Statutes, that the petition presented to the county commissioners for an election to determine whether or not bonds shall be issued in aid of a work of internal improvement must be signed by not less than fifty freeholders of such township. The want of jurisdiction of the county commissioners and other officers clothed with like powers, with respect to similar petitions, to act upon the petition of less than fifty freeholders, or of a certain proportion of qualified electors, is no longer a debatable question in this state. *(State v. School District,*10 Neb., 544; *State v. School District,*13 Neb., 82; *Orchard v. School District,*14 Neb., 378; *State v. Babcock,*21 Neb., 187; *Wullenwaber v. Dunnigan,*30 Neb., 877; *Fullerton v. School District,*41 Neb., 593.) As the county commissioners had presented to them no petition upon which they had jurisdiction to order an election, the bonds were issued without authority of law. The judgment of the district court is therefore

Reversed.