In re House Roll No. 284

• Citation: 31 Neb. 505,48 N.W. 275
• Parties: IN RE HOUSE ROLL NO. 284.
• Decision Date: 10 March 1891
• Court: Supreme Court of Nebraska

31 Neb. 505

48 N.W. 275

IN RE HOUSE ROLL NO. 284.

Supreme Court of Nebraska.

March 10, 1891.

Syllabus by the Court.

1. Under section 5, art. 9, of the constitution, county authorities cannot assess taxes the aggregate of which shall exceed one and a half dollars per $100 valuation, unless authorized by a vote of the people of the county.

2. As under the present statute each warrant must specify the amount levied and appropriated to the fund upon which it is drawn, and the amount already expended of such sum, and any warrant drawn after 75 per cent. of the amount levied for the year is exhausted, where there are no funds in the treasury for the payment of the same, shall not be chargeable against the county, it will be impossible for any county to issue warrants in excess of the amount authorized by the statutes now in force without amending such statutes.

3. An act not complete in itself, but clearly amendatory of a former statute, to which it does not refer, is within the constitutional inhibition, and void. Smails v. White, 4 Neb. 353;Sovereign v. State, 7 Neb. 409.

4. The legislature has authority to pass a law to authorize the county board of any county of the state “to issue bonds of the county to an amount not exceeding 3 per cent. of the assessed valuation of the county for the year 1890, and not exceeding the sum of $20,000, for the purpose of raising money to purchase grain to be planted and sown for the purpose of raising crops for the year 1891, and for feeding teams used in raising said crops.” The question of issuing such bonds must be submitted to the people in the mode provided in sections 27, 28, c. 18, Comp. St., and they cannot be issued on a mere petition for the issuance thereof, signed by a majority of the electors of the county.

5. Under section 15, art. 3, of the constitution, no special law can be enacted where a general law can be made applicable.

Resolutions submitted by the legislature.

M. B. Reese, amicus curiæ.

Church Howe and C. D. Shrader, for the constitutionality of the proposition.

Geo. H. Hastings, Atty. Gen., opposed.

MAXWELL, J.

The following resolutions were on the 3d day of March, 1891, submitted by the honorable house of representatives to this court: “Whereas, the constitutionality of house roll No. 284 is being seriously questioned on account of the form in which it is pending in the house, for the reasons as hereinafter set forth: Resolved, that the said house roll No. 284 be submitted to our honorable supreme court for an opinion as to the constitutionality of said bill, with reference to the following questions: (1) Can counties in this state be authorized and empowered to issue and draw warrants on the general fund of the county in excess of the amount now authorized by law, not to exceed 10 per cent. of the grand assessment roll of each of said counties, to purchase seed-grain for the settlers, and provide for their immediate wants of food, fuel, and clothing, the same to be issued by the respective boards of supervisors of the several counties, or the county commissioners, as the case may be; the said funds raised by issuance of warrants upon the general fund herein provided to be issued under the provisions of an act entitled ‘A bill for an act for the relief of the people in the drought-stricken districts of Nebraska, to aid in feeding and clothing said people, and to provide a method for the distribution of the aid herein provided for the drought-stricken inhabitants,’ passed by the present session of the legislature? (2) Would or would not the provisions of said bill be in violation of section 2, art. 12, of the constitution of the state of Nebraska, the same not having been submitted to the qualified electors of the said counties, respectively, at an election called and authorized by law, for such purpose? (3) Can the board of any county of this state have authority to issue bonds of their respective counties to an amount not exceeding 3 per cent. of the assessed valuation of the county for the year 1890, and not exceeding the sum of $20,000, for the purpose of raising money to purchase grain to be planted and sown for the purpose of raising crops for the year 1891, and for feeding teams used in raising said crops; it being provided that such bonds shall not issue unless a petition for the issuance thereof shall be first presented to said board, signed by a majority of the electors of said county, as shown by the poll-books of the general election of the year 1890? (4) Would or would not the provisions of such act be in contravention of section 5, art. 9, of the constitution of the state of Nebraska?”

The questions involved are of considerable importance, and some of them entirely new. In consequence of the great volume of business before the supreme court, and the consequent inability of the judges to devote as much time to the examination of the questions as was desirable in the brief time allowed them for the consideration of the case, the court, therefore, requested the Hon. M. B. REESE, a former judge of this court, to act as amicus curiæ, and, in connection with the attorney general, to examine the authorities bearing upon the questions submitted. Both gentlemen performed their labor in a thorough and careful manner, and thereby the court has been able to reach a conclusion much earlier than otherwise would have been the case.

The first and second questions will be considered together. Section 5, art. 9, of the constitution, provides that “county authorities shall never assess taxes the aggregate of which shall exceed one and a half dollars per $100 valuation, except for the payment of indebtedness existing at the adoption of this constitution, unless authorized by a vote of the people of the county.” The proper construction of this section was before this court in State v. Gosper Co., 14 Neb. 22, 14 N. W. Rep. 801, and it was held that county commissioners could not levy taxes for the payment of county warrants in excess of the limit fixed by the constitution. The history of legislation relating to county warrants in this state is substantially as follows: “Prior to the year 1859, county warrants were drawn in some of the counties without regard to the amount of the levy, and, it was alleged, greatly in excess of the legitimate claims against the county. In the latter year the legislature passed an act to require each warrant to show on its face the amount levied, and appropriated to the fund upon which it was drawn, and the amount already expended of such fund.” The act declared it to be unlawful for county commissioners to issue warrants in excess of the amount levied by tax for the current year. This...