Davenport v. County of Dodge

• Decision Date: 01 October 1881
• Citation: 26 L.Ed. 1018,105 U.S. 237
• Parties: DAVENPORT v. COUNTY OF DODGE
• Court: U.S. Supreme Court

105 U.S. 237

105 U.S. 237

26 L.Ed. 1018

DAVENPORT v. COUNTY OF DODGE.

October Term, 1881

ERROR to the Circuit Court of the United States for the District of Nebraska.

The facts are stated in the opinion of the court.

Mr. W. H. Munger and Mr. E. Wakeley for the plaintiff in error.

Mr. William Marshall for the defendant in error.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

By a statute of Nebraska, passed in 1869, 'to enable counties, cities, towns, and precincts to borrow money on their bonds, or to issue bonds to aid in the construction or completion of works of internal improvement in this State, and to legalize bonds already issued for such purposes,' the legal voters of counties and cities were authorized to vote bonds for such purposes, and upon a favorable vote, the county commissioners in case of a county, and the city council in case of a city, were to issue the bonds as voted, which were to 'continue a subsisting liability against said city or county' until paid. It was further made the duty of the proper officer annually to cause to be levied, collected, and paid over to the holders of such bonds 'a special tax on all taxable property within said county or city, sufficient to pay' the interest and principal as they fell due. Sects. 6 and 7 of the act are as follows:——

'SECT. 6. Any county or city which shall have issued its bonds in pursuance of this act, shall be estopped from pleading want of consideration therefor, and the proper officers of such county or city may be compelled, by mandamus or otherwise, to levy the tax herein provided to pay the same.

'SECT. 7. Any precinct, in any organized county of this State, shall have the privilege of voting to aid works of internal improvement, and be entitled to all the privileges conferred upon counties and cities by the provisions of this act; and in such case the precinct election shall be governed in the same manner as is provided in this act, so far as the same is applicable, and the county commissioners shall issue special bonds for such precinct, and the tax to pay the same shall be levied upon the property within the bounds of such precinct. Such precinct bonds shall be the same as other bonds, but shall contain a statement showing the special nature of such bonds.' General Statutes of Neb. 448.

Under the authority of sect. 2 bonds were issued by the county commissioners of Dodge County in the following form:

'UNITED STATES OF AMERICA, STATE OF NEBRASKA.*

'It is hereby certified that Fremont precinct, in the county of Dodge, in the State of Nebraska, is indebted unto the bearer in the sum of one thousand dollars, payable on or before twenty years after date, with interest at the rate of ten per cent per annum from date. Interest payable annually on the presentation of the proper coupons hereto annexed. Principal payable at the office of the county treasurer, in Fremont, Dodge County, Nebraska; interest payable at the Ocean National Bank, in the city of New York.

'This bond is one of a series issued in pursuance of and in accordance with a vote of the electors of said Fremont precinct at a special election held on the 11th day of November, 1870, at which time the following proposition was submitted:——

'Shall the county commissioners of Dodge County, Nebraska, issue their special bonds on Fremont precinct, in said county, to the amount not to exceed fifty thousand dollars, to be expended and appropriated by the county commissioners, or as much thereof as is necessary, in building a wagon-bridge across the Platte River, in said precinct; said bonds to be made payable on or before twenty years after date, bearing interest at the rate of ten per cent per annum, payable annually? Which proposition was duly elected, adopted, and accepted by a majority of the electors of said precinct voting in favor of the proposition.

'And whereas the Smith Bridge Company, of Toledo, Ohio, have entered into a contract with said county commissioners to furnish the necessary materials, and to build and construct said bridge referred to in the foregoing proposition:

'Wherefore this bond, with others, is issued in pursuance thereof, as well as under the provision of an act of the legislature of the State of Nebraska, approved February 15th, 1869, entitled 'An Act to enable counties, cities, and precincts to borrow money on their bonds, to aid in the construction or completion of works of internal improvement in this State, and to legalize bonds already issued for such purpose.'

'In witness whereof we, the said county commissioners of said Dodge County, have hereunto set our hands, this first day of September, A. D. 1871.

'GEORGE F. BLANCHARD,

'A. C. BRIGGS,

'JOHN P. EATON,

'County Commissioners.

'Attest:

[SEAL.] 'A. G. BRUGH, County Clerk.'

Default having been made in the payment of sundry coupons attached to these bonds, Davenport, the plaintiff in error, brought suit against the county for the recovery thereof, in the Circuit Court of the United States for the District of Nebraska. The petition set forth the issue of the bonds according to the facts, and prayed judgment 'for the sum of eight hundred and fifty dollars and costs of suit, said judgment to be collected by a tax upon the taxable property within the territory comprising said Fremont precinct at the time said bonds were voted and issued.' The county demurred to the petition, and at the hearing the following questions arose:——

'1. Whether upon the allegations of the amended petition filed in said court on the twelfth day of May, 1881, the said county of Dodge is liable to a suit in which judgment can be rendered against said county of Dodge, on the bonds and coupons therein declared upon and set out.

'2. Whether upon the allegations of the said petition the plaintiff is entitled to recover a judgment in form against the county of Dodge, to be satisfied or collected only by levy of a tax on the taxable property in Fremont precinct, as prayed for in said petition.'

Upon these questions the opinions of the circuit justice and district judge holding the court were opposed, and that disagreement has been duly certified here. The opinion of the circuit justice being that the questions should be answered in the negative, the demurrer was sustained and judgment given for the defendant. From that judgment this writ of error has been brought, and the case is now here for determination on the certificate of division.

When county bonds are issued under the statute in question, it is expressly provided that they shall constitute a debt against the county, to be paid by the levy and collection of taxes on all the taxable property within the county. If aid is voted by a precinct, bonds also are to be issued, differing only from county bonds in that they are to be paid from taxes levied on property within a precinct. 'As to the several duties of the county commissioners respecting them,' says the Supreme Court of Nebraska, in State v. Thorne (9 Neb. 458, 461), 'the...