Hopkins v. Scott

• Decision Date: 03 January 1894
• Docket Number: 5492
• Citation: 57 N.W. 391,38 Neb. 661
• Parties: JOHN H. HOPKINS v. BARRETT SCOTT, TREASURER
• Court: Nebraska Supreme Court

57 N.W. 391

38 Neb. 661

JOHN H. HOPKINS v. BARRETT SCOTT, TREASURER

No. 5492

Supreme Court of Nebraska

January 3, 1894

ERROR from the district court of Holt county. Tried below before BARTOW, J.

Affirmed in part and reversed in part.

Reese & Gilkeson, H. E. Murphy, and M. F. Harrington, for plaintiff in error:

In the absence of statutory power a board of supervisors is without authority to sign, settle, and allow a bill of exceptions. (Taylor v. Tilden, 3 Neb. 339; Kellogg v Huntington, 4 Neb. 96; Rudolph v. Winters, 7 Neb. 127; Nickerson v. Needles, 32 Neb. 230; State v. Oleson, 15 Neb. 247; Donahue v. Will County, 100 Ill. 94.)

The board could act without all members being present. (State v. Board of Supervisors of Saline County, 18 Neb. 422.)

John H Ames, amicus curiae, filed a printed argument in favor of the validity of the act to provide for depositing state and county funds in banks.

H. M Uttley and R. R. Dickson, contra:

A bill of exceptions can be properly and legally authenticated and certified to by each member of the board of supervisors individually, and when certified to by a majority of the members constituting said board of supervisors, the same should be upheld, and considered by the courts. (Maxwell, Pleading & Practice [4th ed.], p. 717; Law v. Jackson, 8 Cow. [N. Y.], 746; Kennedy v. Trustees of Covington, 4 J. J. Marshall [Ky.], 543; Darling v. Gill, Wright [O.], 73.)

When a new statute is evidently intended to cover the whole subject to which it relates, it will by implication repeal all prior statutes on that subject. (United States v. Barr, 4 Sawyer [U. S.], 254; United States v. Claflin, 97 U.S. 546; Dowdell v. State, 58 Ind. 333; State v. Rogers, 10 Nev. 319; Tafoya v. Garcia, 1 N. M., 480; Campbell v. Case, 1 Dak., 17; Andrews v. People, 75 Ill. 605.)

The law under which the proceeding before the county supervisors was commenced has been repealed by implication. The board had, therefore, no jurisdiction over the subject-matter of the action, and was without power to conduct the examination. (Stewart v. Otoe County, 2 Neb. 177; Sioux City & P. R. Co. v. Washington County, 3 Neb. 42; Sexon v. Kelley, 3 Neb. 107; People v. Commissioners of Buffalo County, 4 Neb. 157; Hamlin v. Meadville, 6 Neb. 233; State v. Buffalo County, 6 Neb. 460; McCann v. Otoe County, 9 Neb. 330; Walsh v. Rogers, 15 Neb. 311; State v. Lincoln County, 18 Neb. 283.)

G. M. Lambertson, also for defendant in error:

The judgment of ouster rendered by the board of supervisors is fraudulent and invalid, because some of the supervisors sat as judges to try the accused, gave testimony against him, and then voted in support of the judgment of ouster. (Vanderlip v. Derby, 19 Neb. 165; Foster v. Devenney, 25 Neb. 73; State v. Kaso, 25 Neb. 608; State v. Weber, 20 Neb. 467; Burnett v. Burlington & M. R. Co., 16 Neb. 334; Ensign v. Harney, 15 Neb. 330; Tomlinson v. Derby, 14 Am. Law Reg. [Conn.], 543; Stockwell v. Township Board of White Lake, 22 Mich. 341.)

There should have been a full board present to hear the case. (Hutchinson v. Ashburn, 5 Neb. 402.)

Chapter 50 of the Laws of 1891 is unconstitutional, because it provides that the law shall not be enforced until 1893. Section 24 of article 3 of the constitution, providing that no act shall take effect until three calendar months after the adjournment of the session at which it was passed, unless in case of emergency, is a limitation upon the legislative power to say when laws shall take effect. (Cooley, Constitutional Limitations, p. 188; Wheeler v. Chubbuck, 16 Ill. 361; Board of Supervisors v. Keady, 34 Ill. 293.)

The law is unconstitutional, because the bill contains more than one subject. It applies to the public funds of both the county and state. (White v. City of Lincoln, 5 Neb. 505; Burlington & M. R. R. Co. v. Saunders County, 9 Neb. 507.)

OPINION

The facts are stated in the opinion.

IRVINE, C.

On March 1, 1892, John H. Hopkins filed his complaint before the board of supervisors of Holt county, charging that in November, 1891, Barrett Scott was elected county treasurer and qualified January 7, 1892, and then entered upon the duties of his office; that since the 7th day of January 1892, Barrett Scott had been guilty of official misdemeanors and willful maladministration in his office in certain particulars specified in the complaint. The matters particularly charged may be summarized as depositing in and loaning to certain banks different sums of money, being the moneys of Holt county which came into his hands as county treasurer, and receiving interest upon such money for his own use and benefit, and that said moneys were deposited to the individual credit of Scott and without any bond for the repayment thereof. It was further charged that Scott unlawfully removed the sum of $ 50,000 of the public moneys of Holt county upon the 26th day of February, 1892, and delivered $ 35,000 thereof to a certain bank in Omaha; and further, that he had received $ 150 in payment for certain certificates and had only entered one-eighth of the fees received therefor upon the books. A notice was served upon Scott requiring him to appear before the board of supervisors upon March 2, 1892, to answer the complaint. At the hour named, upon motion of Scott, the hearing was continued until the following morning, when, in the absence of Scott, a plea of not guilty was entered for him, and thereafter Scott filed objections to the jurisdiction of the board to try the case. These objections were overruled, whereupon further objections were made because every member of the board was not present. The record shows that two of the members were absent. Certain other objections were filed, some of which will be noticed hereafter, and finally it was determined that no further motions or pleadings be received except a motion to reject the complaint, a demurrer, or an answer. The board then proceeded to try the case. Scott was found guilty of the charges, and a judgment of ouster was entered. An attempt was made to secure a settlement of a bill of exceptions. Certain members of the board refused to sign the proposed bill, and upon mandamus proceedings they were compelled to do so. The case was taken on error to the district court, where it was heard upon the record, including the bill of exceptions settled in obedience to the writ of mandamus. In the district court a motion was made to quash the bill of exceptions, one of the grounds being that the allowance of the bill was not authorized by law. This motion was overruled. Upon the final hearing the judgment of the board of supervisors was reversed on the following grounds: First, that the board of supervisors had no jurisdiction of the subject-matter; second, that there was no evidence to sustain such judgment. There are certain other findings in the judgment of the district court, but they all resolve themselves under the foregoing heads. The case is brought to this court upon error by Hopkins.

A great many questions are raised in regard to the accuracy of the bill of exceptions, and as to whether or not its allowance was regular; as to whether the district court had any authority to grant a writ of mandamus compelling its allowance; whether its signature by the majority of the supervisors, and not by every member, was sufficient; and as to whether there is any authority for a bill of exceptions in such a case. The conclusion reached upon the last of these questions removes all others from the case. It may be taken as settled that the right to a bill of exceptions is not implied from the right to prosecute proceedings in error, and that a bill of exceptions cannot be allowed except in pursuance of statutory authority. (Moline, Milburn & Stoddard Co. v. Curtis, 38 Neb. 520, 57 N.W. 161.) In the case cited the whole question is discussed at length and the authorities reviewed. There is no statutory authority for a bill of exceptions in such a case as this, and while the case last cited and those therein discussed are not exactly similar in their facts, the principles upon which they rest are precisely the same. We think, therefore, that the district court should have sustained the motion to quash the bill of exceptions, and erred in considering it as a part of the record in the case. It may be that the law should provide a method for bringing up the evidence in such cases as this as well as others, but, as said in Moline, Milburn & Stoddard Co. v. Curtis, supra, this rests with the legislature, and if the law is defective, the court cannot supply its defects.

With the questions raised by the bill of exceptions eliminated, few of the many questions presented in the briefs remain for decision. The first of these, however, is of vital importance, and is probably the point upon which the district judge based his decision. Compiled Statutes, chapter 18, article 2, provides for the removal of county officials for official misdemeanors, classified under eight heads, one of which is willful maladministration in office, and provides that any person may make such charge, and that the board shall have exclusive original jurisdiction thereof. Questions of fact must be tried as in other actions, and if the accused is found guilty, judgment shall be entered removing him from office.

By chapter 50 of the Laws of 1891 it was provided that county treasurers shall deposit in state or national banks doing business in the county, and of responsible standing, the amounts of moneys belonging to the several current funds of the county treasury; that said deposits shall be subject to check, and that interest shall be paid to the county of not less than three per cent per annum of the amounts so deposited. The act also provided for the keeping of accounts...