Oakley v. Valley County
| Decision Date | 05 June 1894 |
| Docket Number | 5308 |
| Citation | 59 N.W. 368,40 Neb. 900 |
| Parties | ROBERT H. OAKLEY v. VALLEY COUNTY |
| Court | Nebraska Supreme Court |
ERROR from the district court of Valley county. Tried below before HARRISON, J.
AFFIRMED.
Darnall & Kirkpatrick and H. A. Babcock, for plaintiff in error.
Charles A. Munn and E. J. Clements, contra.
Robert H. Oakley sued Valley county in the district court thereof to recover from said county the amount called for by three certain warrants drawn by the chairman of the board of county commissioners of said county on the treasurer of said county and drawn on the road fund of districts Nos. 5, 6, and 8 respectively, bearing dates of June 10, 1875, October 5 1875, and April 3, 1877, respectively. The petition alleged that each of said warrants, on the date drawn, were presented to the county treasurer of said county and not paid for want of funds, and that since the issuance of said warrants there had been money in the county treasury with which to pay the same; that although Oakley had repeatedly demanded payment thereof, no part of either of said warrants had been paid. To this petition the county interposed an answer alleging, in substance, that no such funds as those on which the warrants were drawn were then in existence, and that there was no money in the hands of the county treasurer on the dates when said warrants were drawn and presented for the payment thereof. To this answer Oakley demurred. The district court overruled the demurrer and dismissed the action, and Oakley brings the case here on error.
Where a plaintiff demurs to an answer of a defendant, the demurrer will be carried back to the petition, and if that is found to be defective, the demurrer will be overruled. (Hower v. Aultman, 27 Neb. 251, 42 N.W. 1039.) Does this petition state a cause of action? This question must be answered by a construction of certain sections of chapter 66, revenue law of 1869 (Gen. Stats., 1873, p. 896), and chapter 67 of the law of 1866 (Gen. Stats., 1873, p. 950).
Section 30 of said chapter 66 provided the rate of taxation which county authorities might levy for all purposes. Among these purposes they had authority to levy for roads a poll tax of two dollars, or one day's work, and a land tax in any rate not exceeding four dollars to the quarter section, such tax to be paid in money or labor, at the rate of two dollars per day, at the option of the person taxed. By section 32 of said act the county commissioners of the county were required to meet at the county seat on the first Monday of July in each year and levy the necessary taxes for the current year. By section 38 of said act it was provided that the county treasurer should be the collector of taxes; and by section 39 it was provided that road taxes might be discharged by paying cash or labor in the manner provided by section 30 of the act; and that section provided that the county treasurer should receive in payment of road and poll taxes certificates showing the performance of labor in payment of the road tax assessed. Section 40 of said chapter provided that whenever any taxes should be paid to the county treasurer he should make out and deliver to the person paying the same a receipt therefor and specify in such receipt whether the taxes were paid in cash, state warrants, county or road orders, or supervisor's receipts, as the case might be.
On June 7, 1867, the legislature passed an act which became part of said chapter 67, and is found in General Statutes, 1873, at page 958. Section 1 of this act provided that one supervisor should be elected...
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