State ex rel. Berry v. Babcock

• Decision Date: 08 June 1887
• Citation: 21 Neb. 599,33 N.W. 247
• Parties: STATE EX REL. BERRY v. BABCOCK.
• Court: Nebraska Supreme Court

21 Neb. 599

33 N.W. 247

STATE EX REL. BERRY

v.BABCOCK.

Supreme Court of Nebraska.

June 8, 1887.

Syllabus by the Court.

Statutes should be construed, if possible, so as to give effect to every clause, and one act should not be placed in antagonism with another prior act unless such was clearly the intent of the legislature.

All statutes in pari materia must be taken together, and construed as if they were one law. Hendrix v. Rieman, 6 Neb. 516.

A statute will not be considered repealed by implication unless the repugnancy between the new provision and the former statute is plain and unavoidable. Lawson v. Gibson, 18 Neb. 137, 24 N. W. Rep. 447.

The provision of section 28 of chapter 18 of the Compiled Statutes of 1885, which requires the adoption of the amount of tax to be levied to meet the liability incurred by the issuance of bonds, is mandatory, and must be complied with in the issuance of precinct bonds, under the provisions of chapter 58 of the Session Laws of 1885, as well as in the issuance of county bonds.

Mandamus.

W. V. Allen, for relator.

The Attorney General, for defendant.

REESE, J.

The county commissioners of Madison county submitted to the electors of Union Creek precinct, in said county, a proposition to issue $7,000 of precinct bonds to aid in the construction of a court-house in the village of Madison, the county-seat. The proposition, as submitted, was adopted, the bonds executed by the county officers, and presented to the auditor and secretary of state for registration and certification. Those officers, for reasons which will hereafter appear, declined to register and certify the bonds, and this suit is brought for the purpose of compelling action by a peremptory writ of mandamus.

The cause is submitted upon a stipulation which we here copy in full: “It is hereby agreed, by and between the parties hereto, that the annexed transcript, marked ‘Exhibit A,’ and which is incorporated into and made a part of this stipulation, is a true and accurate history and transcript of all things connected with and pertaining to the voting of $7,000 of precinct bonds of Union Creek precinct, Madison county, Nebraska, on the thirteenth day of August, 1886. The relator having presented the bonds duly executed and in proper form to the defendant Babcock, auditor of state, for registration, and to the other defendant as secretary of state, to be certified, they respectively refuse to register and certify said bonds solely on the ground that the commissioners of Madison county, in calling the election in the precinct to vote on the question of the issuance of said bonds, did not embrace in the submission an additional proposition to ‘adopt the amount of the tax to be levied to meet the liability incurred,’ as provided in section 28, chapter 18, Compiled Statutes of 1885; all other matters being adjudged and found by them to be strictly regular, and in conformity to the statute. The parties submit this question, and no other, to the consideration of the court: In submitting the question of the issuance of said precinct bonds to the voters of Union Creek precinct, was it necessary to the validity of the election that there be embraced in the submission an additional proposition ‘adopting the amount of the tax to be levied to meet the liability incurred’ by the voting of said bonds, as provided in section 28, chapter 18, Compiled Statutes of 1885? If this shall be answered in the negative, a writ of mandamus shall be issued to the defendants, requiring them to respectively register and certify said bonds. If answered in the affirmative, no writ shall be issued.”

It will thus be seen that the question presented for decision is whether or not it was necessary to comply with the provisions of sections 27 and 28, c. 18, Comp. St. 1885, in submitting the question of the issuance of the bonds to the voters of the precinct. Our attention is particularly directed to section 28, which is as follows: “When the question submitted involves the borrowing or expenditure of money or issuance of bonds, the proposition of the question must be accompanied by a provision to levy a tax annually for the payment of interest, if any, thereof, and no vote adopting the question proposed shall be valid unless it likewise adopt the amount of tax to be levied to meet the liability incurred.”

It is believed by the auditor and secretary that the latter clause of the foregoing section is in force, and that its provisions are mandatory; while it is contended, on the part of the relator, that the provisions contained in subsequent enactments have so far modified this section in its application to the bonds in question as to render a compliance with its terms unnecessary. It is not our purpose to follow and discuss, in detail, the very able and logical argument presented in the brief of the attorney for relator, but we must be content with a brief statement of our conclusions, and their application to the case at bar. It is a fundamental principle of law...