Lancaster Cnty. v. Green

• Decision Date: 03 March 1898
• Citation: 54 Neb. 98,74 N.W. 430
• Parties: LANCASTER COUNTY v. GREEN ET AL.
• Court: Nebraska Supreme Court

54 Neb. 98

74 N.W. 430

LANCASTER COUNTY

v.GREEN ET AL.

Supreme Court of Nebraska.

March 3, 1898.

Syllabus by the Court.

1. A board of county commissioners, in addition to the powers specially conferred by statute, has such other powers as are incidentally necessary to enable such board to carry into effect the powers granted.

2. The word “necessary” considered, and, in respect to the implied powers of boards of county commissioners, held to mean no more than the exercise of such powers as are reasonably required by the exigencies of each case as it arises.

3. An instruction which withdrew from the jury the consideration of the necessity of employing brokers to refund county bonds, because in the contract, for the performance of which the recovery was sought against the county, its commissioners had assumed to determine the existence of such necessity, held erroneous.

Error to district court, Lancaster county; Hall, Judge.

Action by W. C. Green and another against Lancaster county. Judgment for plaintiffs, and defendant brings error. Reversed.

A. G. Greenlee and A. E. Harvey, for plaintiff in error.

Lamb & Adams, L. W. Billingsley, and R. J. Greene, for defendants in error.

RYAN, C.

While there may be room for doubt as to the correctness of our position, we assume that this case was an appeal from the disallowance of a claim by the board of county commissioners of Lancaster county. In the petition filed in the district court of that county, the plaintiffs, Green and Van Duyn, alleged that, December 27, 1893, they had entered the service of said county as agents to refund certain of its bonds, at an agreed compensation of $7,500 if successful; that they had performed their undertaking, and were entitled to a balance of $5,500, after crediting the county with a payment of $2,000. By its answer the county joined issue as to the existence of any indebtedness owing by it to the above-named plaintiffs. Upon a trial of the issues, there was a verdict for the plaintiffs in the sum of $2,046.64, and a judgment thereon was rendered against the county, which prosecutes these proceedings in error. There was given, among other instructions, the following: “(2) Under the statutory law of this state, and the construction thereon placed by the supreme court of Nebraska, the board of county commissioners had lawful authority and legal right to make and enter into said contract, and employ said Green and Van Duyn as agents to assist said board, if necessity therefor existed, in refunding the bonds of the county at a lower rate of interest. The question of the necessity of said employment of agents to aid the county board in refunding said bonds does not arise, and is not an issue in this case, as between the parties to this suit, for the reason that the county board itself in said contract has determined the question, and so, in reaching a verdict, you will discard the question of the necessity of the employment of agents entirely from your consideration.” We shall now consider the two distinct propositions recognized in the above instruction: First, that the board had the authority to enter into the contract if a necessity therefor existed; and, second, that the assumption of the right to enter into the contract by the board was conclusive as to its power in that respect. By the provisions of section 23, art. 1, c. 18, Comp. St., the management of the county funds and county business, except in certain cases not necessary to consider, was intrusted to this board. With respect to the faithful performance of their duties by the members of the board, the same presumptions obtain as are entertained with reference to the discharge of their duties by other officers. In Sioux City & P. R. Co. v. Washington Co., 3 Neb. 30, occurs this language: “It was insisted on the argument that the law presumes all officers have done their duty. This is true in some respects, but, when the acts of officers who exercise judicial functions of limited jurisdiction are questioned, the rule is well settled that they must not only show they acted within the authority granted, but it must also appear of record that they had jurisdiction. Frees v. Ford, 6 N. Y. 176;Yates v. Lansing, 9 Johns. 437;Reynolds v. Stansbury, 20 Ohio, 353,Wheeler v. Raymond, 6 Cow. 582;Bloom v. Burdick, 1 Hill, 130.” In State v. Lincoln Co., 18 Neb. 283, 25 N. W. 91, it was said: “It is well settled in this state that counties have no inherent power, and that their commissioners, or agents acting for them, have only such powers, generally, as are specially granted to them by the statute, or such as are incidentally necessary to carry into effect those which are granted.” In support of this proposition there were cited Hallenbeck v. Hahn, 2 Neb. 397; Sioux City & P. R. Co. v. Washington Co., supra; Sexson v. Kelley, 3 Neb. 107; People v. Commissioners of Buffalo Co., 4 Neb. 157; Hamlin v. Meadville, 6 Neb. 233; State v. Board of Com'rs of Buffalo Co., 6 Neb. 460; McCann v. Otoe Co., 9 Neb. 324, 2 N. W. 707;Walsh v. Rogers, 15 Neb. 311, 18 N. W. 135. In addition to these, there might now be cited Douglas Co. v. Keller, 43 Neb. 635, 62 N. W. 60, and Tullock v. Webster Co., 46 Neb. 211, 64 N. W. 705. This grant of power must be strictly construed. State v. Lincoln Co., supra; Sioux City & P. R. Co. v. Washington Co., supra; Sexson v. Kelley, supra; People v. Commissioners of Buffalo Co., supra; Commissioners v. Mighels, 7 Ohio St. 115;Treadwell v. Commissioners, 11 Ohio St. 190. We are not aware of any opinion in which is so thoroughly discussed the force of the word “necessary” as in McCulloch v. State, 4 Wheat. 316, from which the following language of Marshall, C. J., is quoted: “Congress is not empowered by it [the constitution] to make all laws which may have relation...