O'Connell v. Sioux County

• Decision Date: 24 December 1913
• Docket Number: 17,493
• Citation: 144 N.W. 779,94 Neb. 826
• Parties: MICHAEL J. O'CONNELL, APPELLANT, v. SIOUX COUNTY, APPELLEE
• Court: Nebraska Supreme Court

144 N.W. 779

94 Neb. 826

MICHAEL J. O'CONNELL, APPELLANT, v. SIOUX COUNTY, APPELLEE

No. 17,493

Supreme Court of Nebraska

December 24, 1913

APPEAL from the district court for Sioux county: WILLIAM H WESTOVER, JUDGE. Affirmed.

AFFIRMED.

Albert W. Crites, for appellant.

Fern S Baker, Allen G. Fisher and William P. Rooney, contra.

SEDGWICK J. LETTON, FAWCETT and HAMER, JJ., not sitting.

OPINION

SEDGWICK, J.

This plaintiff was the county attorney for Sioux county for the years 1907, 1908, 1909, and 1910. For the first three years of those named and for the first three-fourths of the year 1910 he was paid the salary at the rate of $ 500 a year, and afterwards he filed a claim with the county board for $ 750 balance due him for salary for the time named, claiming that he was entitled to $ 700 a year instead of $ 500. The county board rejected his claim, and upon appeal to the district court for Sioux county he was allowed $ 150 only. From this judgment of the district court he has appealed.

1. During the time specified he filed claims for his salary quarterly at the rate of $ 500 a year, which were allowed, warrants duly drawn, and by him presented and paid. The first contention of the county is that, by filing these claims and accepting these warrants, he is now estopped to make any further claim for salary. The trial court, upon demurrer, held that this was no defense, and we think that this ruling in the trial court, under the condition of this record, was correct. Under the statute, as it then was, the salary of the county attorney depended upon the number of inhabitants of the county. In counties of 4,000 or more and less than 8,000 inhabitants the salary was fixed at $ 700 a year, and the record of the action of the county board upon the plaintiff's claim recites: "The claim of M. J. O'Connell for $ 750 for back pay as county attorney for years 1907, 1908, 1909, and first 3 quarters of 1910, claiming that the number of inhabitants exceeded 4,000 or more, was taken up, and owing to the fact that the board has no way of ascertaining that the population of Sioux county was 4,000 or more for the above years mentioned, on motion the claim was rejected." The record shows that no other issue was presented to or determined by the county board than the issue so determined. The answer filed in the district court presented only this issue. This record shows that it was conceded by the county in the action of its county board that the justice of the plaintiff's claim depended solely upon the number of inhabitants in the county during the years of his services. An amended answer was filed alleging the estoppel relied upon, but, upon demurrer, this issue was by the court stricken from the answer. Under these circumstances the case ought now to be determined upon the issue so tried and determined.

2. The question is whether during the years named Sioux county contained 4,000 or more inhabitants. Section 19 ch. 7, Comp. St. 1907, fixes the salaries of county attorneys in these words: "In counties having from four thousand (4,000) to eight thousand (8,000) population, seven hundred dollars ($ 700.)" It did not specify how the number of inhabitants should be determined. By the federal census of 1900 Sioux county contained 2,055 inhabitants, and by the federal census of 1910 it contained 5,599. In some cases, and for some purposes, the statute requires that the population of a given political subdivision can be determined only by a duly authorized census. In other cases it contemplates that the number of inhabitants may be determined by other methods. It has been several times held by this court, and uniformly so far as the writer recalls, that when, as in this case, the statute makes no provision as to the method or time of ascertaining the number of inhabitants, the latest general census of the federal government does not necessarily control. The salary of the county attorney for any year depends upon the number of inhabitants of the county during that year, and that fact is to be determined, as are other facts in litigation, by the best competent evidence that can be adduced under the circumstances. ...