McCann v. Otoe County Com'rs
| Decision Date | 15 October 1879 |
| Citation | 2 N.W. 707,9 Neb. 324 |
| Parties | DWIGHT J. MCCANN, PLAINTIFF IN ERROR, v. THE BOARD OF COUNTY COMMISSIONERS OF OTOE COUNTY, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court of Otoe county. Tried below before POUND, J. The case is stated in the opinion.
Reversed.
E. F Warren, for plaintiff in error.
1. Plaintiff in error had, in 1868, in order to help the county authorities and raise money for the treasury, purchased at tax sale a large number of tracts of land, paid the amount of tax therefor into the treasury, and taken certificates of sale thereon. Many of these sales were void by reason of the fact that the taxes alleged to be delinquent had been paid by the owners of the lands, who produced receipts, and for other fatal defects. By Sec. 71, Chap. 66, p. 924, Gen. Stat., the county is required "to save the purchaser harmless by paying him the amount of principal and interest to which he would have been entitled had the land been righfully sold." This is but declaratory of the common law liability to refund in all such cases, because an action for money received to plaintiff's use would lie. Norten v. Supervisors, 13 Wis. 612. Cobb v Supervisors, 18 Wis. 247. Hutchinson v Supervisors, 26 Wis. 402. Warner v. Board, 19 Wis. 611. Kellogg v. Board, 42 Wis. 97. Barden v. Columbia Co., 33 Wis. 445. Wolf v. Sheyboygan, 29 Wis. 82. Nicodemus v. Saginaw, 25 Mich. 456. Board v. Manney, 56 Ill. 160. Hill v. Board, 12 N.Y. 52. Chapman v. Brooklyn, 40 N.Y. 372. Gillette v. Hartford, 31 Conn. 356. Slack v. Norwich, 33 Vt. 818-23. Preston v. Boston, 12 Pick. 7. Torrey v. Millsbury, 21 Pick. 64. Thayer v. Boston, 19 Pick. 511. Wright v. Boston, 9 Cush. 233-241. Glass Co. v. Boston, 4 Met., 181. Dow v. Sudbury, 5 Met., 73. Jayner v. School Dist., 3 Cush. 567. Howe v. Boston, 7 Cush. 273. Rogers v. Greenbush, 58 Me. 390. Erskin v. Van Arsdale, 15 Wall., 75. Bank v. New York, 43 N.Y. 184.
2. No demand is necessary before suit, nor need the claim be presented for allowance and audit to the board. Newman v. Board, 45 N.Y. 676. People v. Supervisors, 11 N.Y. 574. Howell v. Buffalo, 15 N.Y. 512. Look v. Industry, 51 Me. 375. Pierce v. Benjamin, 14 Pick. 356.
3. A claim for moneys paid into the county treasury for said tax sales is not within the jurisdiction of the board of commissioners--Stringham v. Board, 24 Wis. 512--and therefore this action does not come within the principle of the case of Brown v. Otoe Co., 6 Neb. 112. See Dillon Mun. Corp., § 951.
4. The payment by the county for repairs upon McCann's bridge was clearly within their jurisdiction, and the contract to purchase the same was equally so, if in their discretion it was wiser and better so to do, than to build others. There is nothing in the transaction, as alleged in the answer, contrary to public policy. To deny to McCann payment, therefore, is to use, by the public, private property until it is destroyed, and then refuse compensation for the same. It is a species of confiscation.
Covell & Ransom for defendants in error.
1. The county commissioners could not audit or allow any claim in favor of McCann for invalid tax certificates, so as to bind the county, as is set up in the second count of his answer, because it was not within their jurisdiction. It was a claim for money paid for tax certificates alleged to have been invalid, and for county warrants paid for the same by McCann. Being such, it was no part of the legitimate expenditures of the county, and was not such an account as was "chargeable against the county," and only such were they authorized to examine, audit, and allow. Stringham v. Board, 24 Wis. 594. Marsh v. Board, 42 Wis. 355. Newman v. Supervisors, 45 N.Y. 689. People v. Supervisors, 11 N.Y. 574. There would not have been any possible ground for a recovery by McCann against the county on his claim presented to the county board, concerning which their illegal order was made, in a suit therefor, unless it be given by sec. 71 Gen. Stat., 924.
We contend that not even under this statute has a tax purchaser any right of recovery against the county. A tax purchaser is one who voluntarily pays the taxes on another's land by purchasing same at tax sale, and not by compulsion, and therefore he cannot recover the amount so paid from the municipality receiving it. Smith v. Redfield, 27 Me. 145. N. Y. R. R. Co. v. Marsh, 12 N.Y. 308. Walker v. St. Louis, 15 Mo. 563. Hospital v. Philadelphia Co., 24 Penn. St., 229. Taylor v. Board of Health, 31 Penn. St., 73. Barrett v. Cambridge, 10 Allen, 48. Corkel v. Maxwell, 3 Blatch., 413. Phillips v. Jefferson Co., 5 Kan. 412. Waubunsee Co. v. Walker, 8 Kan. 431. Christy's Administrator v. St. Louis, 20 Mo. 143. State of Wisconsin v. Hartman, C. L. Jour., March 21, 1879, p. 236.
2. The board of county commissioners had no power under the statutes to make any such contract with D. J. McCann with respect to the purchase of a bridge of him, as is sought to be pleaded in said third count of his answer. No power is given them by chap. 9 of the revised statutes, 1866, entitled "County Commissioners and County Clerks," nor by chap. 47 of same statutes, entitled "Roads"--which were the statutes in force at the time of the alleged purchase-- to make any such purchase, or attempt to make any such contract as is alleged; even if they had power to make the purchase of said bridge, they could not delegate their powers to third persons as arbitrators to fix a price for the bridge, so as to bind the county by the award that might be made by them. The board of county commissioners can exercise no powers except such as are especially granted; and the grant must be strictly construed. There is no authority of law for the county commissioners to bind the county in the manner contemplated. Stewart v. Otoe County, 2 Neb. 177. County of St. Louis v. Cleland, 4 Mo. 84. Hoover v. Hoover, 5 Blackf., 182. White v. Conover, 5 Blackf., 462. Murphy v. Napa Co., 20 Cal. 497. Rhode v. Davis, 2 Cart. (Ind.), 53. Frees v. Ford, 2 Seld. (N. Y.), 176.
In April, 1876, the defendants in error brought an action against the plaintiff in error in the district court of Otoe county upon the following instrument:
The petition alleges that, although the instrument is signed in the partnership name, yet it is the individual obligation of D. J. McCann, and this is not denied.
To this petition the plaintiff in error filed an answer, admitting the execution of the allegation above set forth, but denying that Otoe county was the owner of the same.
As a second defense he alleges that on or about the 8th day of September, 1868, he purchased from the treasurer of Otoe county a large amount of lands in said county for delinquent taxes, and paid the treasurer in full therefor in cash and warrants, and received certificates of sale of the lands so purchased; that among said certificates were a large number that were illegal, and not collectible for various reasons; and on or about the 11th of September, 1873, he compromised with the board of county commissioners of said county, by which it was agreed that the commissioners should pay him for such worthless certificates the amount paid by him into the treasury of the county therefor, with interest at 12 per cent thereon upon the surrender of such certificates; that thereupon he surrendered certificates to the amount of $ 429.60, and received payment therefor; and in November following he surrendered other certificates, amounting with interest to the sum of $ 1627.20, upon which he was paid the sum of $ 598.03; that he was to have credit on the books of the treasurer for the amount remaining unpaid, amounting to the sum $ 1039.34.
As a third defense, he alleges that in the year 1872 he owned the land upon both banks of the Nemaha river at a certain point, and had erected at that place a bridge across said river for his own use; that during that year several freshets carried out the bridges across said river on the county roads, but that his was left undisturbed; that to preserve communication across the river the county commissioners entered into a contract with him for the use of said bridge by the public, and paid him therefor in one season the sum of $ 700; that afterwards certain arbitrators were chosen by the parties, and the value of said bridge and the right of way were appraised at the sum of $ 1300, no part of which has been paid.
To this count of the answer the defendants in error demurred upon the ground that...
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