Lancaster County v. Green

• Decision Date: 03 March 1898
• Docket Number: 7885
• Citation: 74 N.W. 430,54 Neb. 98
• Parties: LANCASTER COUNTY v. W. A. GREEN ET AL
• Court: Nebraska Supreme Court

74 N.W. 430

54 Neb. 98

LANCASTER COUNTY v. W. A. GREEN ET AL

No. 7885

Supreme Court of Nebraska

March 3, 1898

ERROR from the district court of Lancaster county. Tried below before HALL, J. Reversed.

REVERSED AND REMANDED.

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

Lamb & Adams, L. W. Billingsley, and R. J. Greene, contra.

OPINION

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 & 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 & 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 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, article 1, chapter 18, Compiled Statutes, the management of the county funds and county business, except in certain cases not necessary to consider, was entrusted 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 County, 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. [N.Y.] 437; Reynolds v. Stansbury, 20 Ohio 344, 353; Wheeler v. Raymond, 8 Cow. [N.Y.] 314; Bloom v. Burdick, 1 Hill [N.Y.] 130.)"

In State v. Lincoln County, 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 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. 377; Sioux City & P. R. Co. v. Washington County, supra; Sexson v. Kelley, 3 Neb. 104; People v. Commissioners of Buffalo County, 4 Neb. 150; Hamlin v. Meadville, 6 Neb. 227; State v. Buffalo County, 6 Neb. 454; McCann v. Otoe County, 9 Neb. 324, 2 N.W. 707; Walsh v. Rogers, 15 Neb. 309, 18 N.W. 135. In addition to these there might now be cited Douglas County v. Keller, 43 Neb. 635, 62 N.W. 60, and Tullock v. Webster County, 46 Neb. 211, 64 N.W. 705. This grant of power must be strictly construed. (State v. Lincoln County, supra; Sioux City & P. R. Co. v. Washington County, supra; Sexson v. Kelley, supra; People v. Commissioners of Buffalo County, supra; Commissioners of Hamilton County v. Mighels, 7 Ohio St. 109; Treadwell v. Commissioners of Hancock County, 11 Ohio St. 183.)

We are not aware of any opinion in which is so thoroughly discussed the force of the word "necessary" as in McCulloch v. State of Maryland, 17 U.S. 316, 4 Wheat. 316, 4 L.Ed. 579, 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 to the powers conferred on the government, but such only as may be 'necessary and proper' for carrying them into execution. The word 'necessary' is considered as controlling the whole sentence and as limiting the right to pass laws for the execution of the granted powers to such as are indispensable and without which the power would be nugatory; that it excludes the choice of means and leaves to congress, in each case, that only which is most direct and simple.

"Is it true that this is the sense in which the word 'necessary' is always used? Does it always import an absolute physical necessity, so strong that one thing to which another may be termed necessary can not exist without that other? We think it does not. If reference...