Maher v. State ex rel. Allen

• Decision Date: 01 July 1891
• Citation: 32 Neb. 354,49 N.W. 436
• Parties: MAHER, TREASURER, v. STATE EX REL. ALLEN ET AL.
• Court: Nebraska Supreme Court

32 Neb. 354

49 N.W. 436

MAHER, TREASURER,

v.STATE EX REL. ALLEN ET AL.

Supreme Court of Nebraska.

July 1, 1891.

Syllabus by the Court.

1. Money can be drawn from the treasury of a school district in the payment of contractors for the erection of a school-house only by orders on the treasurer, signed by the director, and countersigned by the moderator. State v. Bloom, 19 Neb. 562, 27 N. W. Rep. 638.

2. Where the treasurer of the district, having funds in his hands for that purpose, refuses to pay such order, issued in full compliance with the provisions of law, peremptory mandamus will enforce the payment.

Error to district court, Dakota county; POWERS, Judge.Jay Bros. and Mell C. Beck, for plaintiff in error.

Barnes & Tyler, for defendants in error.

COBB, C. J.

The defendants in error, on July 21, 1890, made application to said court for a peremptory writ of mandamus against the treasurer of school-district No. 11, of said county, to enforce the payment of a certain warrant for the sum of $125, dated July 14, 1890, and setting up:

“ First. That the plaintiffs and relators are a copartnership, a firm organized for the purpose of carrying on business in the state of Nebraska, and not incorporated, and are so doing business in this state, as contractors and builders, and are entitled to sue and act in the capacity of plaintiffs and relators herein, in such firm name, to-wit, Allen and Jenkins.

Second. That school-district No. 11 is a school-district of Dakota county, Neb., duly organized and existing under the laws of the state of Nebraska, and as such corporation has been so organized for more than ten years last past. That the defendant, Nick Maher, is the treasurer of said school-district No. 11, duly elected and qualified, and is now acting as such officer. That John A. Williams is director, and W. B. Ammerman is moderator, of school-district No. 11.

Third. That on and prior to the 12th day of May, 1890, there was in the treasury of said school-district No. 11 the sum of $13,810.50, of which said sum more than $10,000 belonged to the general fund, and was exclusive of any and all moneys in the said treasury belonging to the teachers' fund, and the moneys received from the state apportionment for such teachers' fund; and the said $10,000 could, by the legal voters of said school-district No. 11, be legally set off and transferred to a fund for building purposes, to erect a new school-house for said district. That on the 12th day of May, 1890, there was held a special meeting of all the legal voters of said school-district No. 11, pursuant to a petition duly and legally signed and presented to the board of said district, and in accordance with due, proper, and legal notice thereof, duly posted and given, as provided by law. The object and purpose of said special meeting was to arrange for building a new school-house in and for said school-district No. 11, and at said meeting and adjourned meeting for that purpose it was determined and voted by the said school-district to build and construct said school-house at a cost not to exceed the sum of $10,000, and the said sum, out of the moneys so in said school-district treasury, was transferred to and set apart for the purpose of building said school-house, and a committee was duly appointed to let the contract to build said school-house, and take charge of the construction thereof,--all of which more fully appears by a copy of the records of said meetings, in the words and figures following, to-wit: ‘A special meeting of school-district No. 11, county of Dakota, state of Nebraska, was held pursuant to a call, at the school-house in said district, on the 12th day of May, 1890, at 2 o'clock P. M. Moderator in the chair. Minutes of the last meeting were read, and, after amendment, were approved. The object of the meeting, as stated in the notice, was announced by the chairman to be for the purpose of arranging for the erection of a school-house on the district-school grounds, and the sale and removal of the old school-house from its present site, and to take such other action as may be deemed necessary to facilitate such object. On motion, it was voted to erect a new school-house, at a cost not to exceed $10,000. On motion, it was voted that the chairman appoint a committee of three to visit the school-houses in Sioux City, and look over the same, and to confer with architects, and to report at the adjourned meeting. Chairman appointed, as such committee, S. R. Cowles, C. D. Schrever, and J. N. Peyson. On motion, it was voted that the directors look up the title to block 111, now in the possession of the district, to see what defects, if any, there may be in the title to the same, and report at the adjourned meeting. On motion, adjourned until Saturday, May 17, 1890, at 7 o'clock P. M. JOHN A. WILLIAMS, Director.’ ‘Covington, May 17, 1890. Special meeting of school-district No. 11 of Dakota county, called on the 12th day of May, 1890, met pursuant to adjournment. Moderator in the chair. Minutes of last meeting read and approved. Committee appointed at the last meeting to look at the school-houses in Sioux City, Iowa, and to consult with an architect, reported. Report accepted, and placed on file. Abstract of title of block 111 of village of Covington placed on file. On motion, it was voted that the board take all necessary and proper steps to perfect the title of the district to lot 6, in block 111. On motion, it was voted that the board advertise and sell the old school building, and, in case the same is not sold, remove the same to north-west corner of the grounds. On motion, it was voted to adopt the plans of the Le Mars school-house, with modifications submitted by E. W. Loft, architect. On motion, it was voted that the chairman appoint a building committee, consisting of five members, such committee to have control of and to superintend the construction of the new school-house. Chairman appointed, as such committee, S. R. Cowles, J. J. Truax, J. N. Peyson, F. B. Church, and D. Gillespie. On motion, it was voted that no contract be made for heating apparatus for a new building at present. On motion, adjourned sine die. JOHN A. WILLIAMS, Director.’

That said committee duly advertised for bids for the erection of said school-house, according to the plans and specifications which had been adopted at the meeting, by the legal voters of said school-district, reserving the right to reject any and all bids, as they lawfully might do. That upon the opening of said bids, and the same being unsatisfactory, all of said bids were rejected, and the contract was finally let to the relators herein, to build and construct said school-house for said school-district at the agreed price of $8,504.56; and a proper, legal, and binding contract in writing was duly entered into between the said relators on their own part, and the said committee on the part of said school-district No. 11; the said sum of $8,504.56 to be paid to the relators at such times, and in such sums, as the progress of the work required. And the said relators duly executed to the said school-district No. 11 a good and sufficient bond, which was duly approved by the district, for the faithful performance of the said contract. That said contract was entered into in good faith on the part of the said school-district No. 11, and through its said committee for that purpose, under the belief that it could so do by and through said committee. That before the annual school meeting for the year 1890 was held in said school-district No. 11, and before any work was performed or commenced, or any expense incurred, under the said contract, it was found that the law relating to building committees for school-districts was repealed, and that the school-district board was required to act in that behalf and capacity; and thereupon, at the annual meeting of the legal voters of the said school-district No. 11, duly held on the 30th day of June, 1890, at which was present all of the legal voters of said school-district, including the defendant herein, after the whole matter and proceedings in that behalf for the erection and construction of the said school-house were laid before said meeting, and discussed and thoroughly understood, the legal voters at said annual meeting duly approved the said contract so as aforesaid made, and ratified the same, and ordered and directed the board to sign said contract with the relators so as to make the same legal and binding, which was accordingly done; all of which is shown by a copy of the record of said annual meeting, in the words and figures following, to-wit: ‘The annual meeting of school-district No. 11, county of Dakota and state of Nebraska, was held at the school grounds in said district, Monday, the 30th day of June, 1890. Moderator in the chair. Minutes of the last meeting and special meetings of May 12 and 17, 1890, read and approved. The report of the treasurer was read, and, on motion, it was voted that a committee of three be appointed by the chair to examine the treasurer's books and vouchers. Chairman appointed as such committee Messrs. Irwin, Dow, and Truax. The report of the director was read and adopted. The following district officer for the ensuing term, to-wit, John A. Williams, was elected director. On motion, it was voted to have seven months' school during the ensuing year, to commence on the first Monday in October, 1890. On motion, it was voted that the sum of $10,000 from any money in the hands of the treasurer be set apart as a building fund, to be used in the construction of a new school-house now in course of erection. On motion, it was voted that the district treasurer and moderator be added to the building committee. On motion, it was voted that a subcommittee offour, consisting of Messrs. Maher, Ammerman, Truax, and Gillespie, be appointed from the building committee to have immediate charge of the building of the new school-house. On...