Morris v. Merrell

• Decision Date: 04 April 1895
• Docket Number: 6745
• Citation: 62 N.W. 865,44 Neb. 423
• Parties: NELSON MORRIS, APPELLANT, v. MARION G. MERRELL ET AL., APPELLEES
• Court: Nebraska Supreme Court

62 N.W. 865

44 Neb. 423

NELSON MORRIS, APPELLANT, v. MARION G. MERRELL ET AL., APPELLEES

No. 6745

Supreme Court of Nebraska

April 4, 1895

APPEAL from the district court of Burt county. Heard below before FERGUSON, J.

REVERSED AND REMANDED.

Wharton & Baird and H. Wade Gillis, for appellant, cited Commissioners of Merrick County v. Baty, 10 Neb 176; Morrill v. Taylor, 6 Neb. 246; Lyman v Anderson, 9 Neb. 367.

W. G. Sears, Lake, Hamilton & Maxwell, and Jesse T. Davis, contra, cited: Touzalin v. City of Omaha, 25 Neb. 817.

Ira Thomas, also for appellees.

OPINION

NORVAL, C. J.

This action was brought by Nelson Morris in the district court of Burt county to enjoin the location and construction of a ditch over his lands, and to restrain the collection of the special assessments made against said lands for the purpose of paying the costs of constructing said ditch. A general demurrer to the petition was sustained by the court and the action dismissed. Plaintiff appeals.

It appears from the petition that on the 9th day of July, 1892, there was filed in the office of the county clerk of Burt county a petition signed by J. H. Stork and others, praying the board of county commissioners to locate and construct a ditch upon a certain described route the same being over and across lands owned by the plaintiff; that on the 16th day of the same month two of the county commissioners, W. T. Berry and F. E. Higley, with the county surveyor, W. E. Pratt, met in the county clerk's office and, upon consideration of the petition, entered an order upon the journal of the commissioners to the effect that the improvement is necessary and will be conducive to the public health, convenience, and welfare, and that the proposed location is the best and the most practicable route. W. E. Pratt was appointed engineer on said ditch, and ordered at once to make the necessary survey, levels, and estimates, also the assessments against the lands benefited by said improvement. Subsequently, the county commissioners adopted the report and assessment made by the engineer. Claims for damages by reason of the location of the ditch were allowed C. M. Woodworth, A. J. McClannahan, and May Burch, all other claims being rejected. Advertisement for bids for the construction of the proposed ditch was made, bids were received, and the contract for said construction was awarded to the defendant George Southerland. It is also alleged that on December 2, 1892, the county clerk, without any order or entry of an order from the board of county commissioners, made and delivered to the county treasurer a special duplicate containing said assessment; that the county treasurer, unless restrained, will advertise and sell plaintiff's land to pay said assessments; that the county commissioners will allow claims for work upon said ditch, for damages occasioned thereby and for payment for other costs and expenses, including services of the engineer; that George Sutherland threatens, and is about, to construct said ditch across the lands belonging to plaintiff. The sixth paragraph of the petition is in the following language:

"6. Plaintiff alleges that the whole of the proceedings of the board of county commissioners of said Burt county, and of said county clerk, are utterly void and without authority or warrant of law, because the said county clerk did not at the next meeting, after the filing of the petition for the construction of said ditch herein referred to, deliver a copy of said petition to the board of county commissioners at their next meeting after the filing of said petition on the 9th day of July, 1892. Plaintiff alleges that on the 16th day of July, 1892, that the pretended meeting of W. T. Berry and the hereinbefore mentioned F. E. Higley was utterly and absolutely void, without authority or warrant at law, because the same was not upon a day fixed by statute for holding meetings of boards of county commissioners; that it was not a meeting which had been called or pretended to be called, or was special, of said board of county commissioners; nor was the same upon a day to which said board of county commissioners had adjourned, but plaintiff alleges the fact to be that on the 9th day of July, 1892, said board of county commissioners adjourned until the 2d day of August, 1892."

The first point made by the appellant, and upon which he relies for a reversal of the judgment, is that the proceedings had on July 16, 1892, ordering and locating the ditch in question, are without jurisdiction and void, for the reason that the board of county commissioners were neither in regular nor special session on that date, and therefore could not legally transact any official business at that time. In our view the objection is well taken. Sections 56 and 57, chapter 18, Compiled Statutes, are as follows:

"Sec. 56. The county commissioners shall meet and hold sessions for the transaction of county business at the court house in their respective counties, or at the usual place of holding sessions of the district court, on the second Tuesday in January, third Monday in June, and first Tuesday in October of each year, and may adjourn from time to time.

"Sec. 57. The county clerk shall have power to call special sessions when the interests of the county demand it, upon giving five days' notice of the time and object of calling the commissioners together, by posting up notices in three public places of the county, or by publication in a newspaper published therein."

The first section quoted above fixes the time for holding the regular meetings of the county board, and authorizes the board to prolong a session by regular adjournments. By said section 57 provision is made for the calling of special sessions of the county board, and it specifies by whom and in what manner the same shall be called, and prescribes the manner in which notice of such called session shall be given. The county commissioners of a county can only transact county business at the time specified in said section 56 or at some regular adjourned session of the board, or a special session called in the manner pointed out in section 57. Such is evidently the legislative will. The statute is imperative and must be followed. A special session of the board can only be called in the mode provided by law and notice thereof must be published or posted as the statute directs. ...