Omaha Armory Bldg. Co. v. Johnson (In re Appeal from State Auditor of Pub. Accounts)

• Citation: 226 N.W. 911,119 Neb. 29
• Decision Date: 11 October 1929
• Docket Number: No. 26872.,26872.
• Parties: APPEAL FROM STATE AUDITOR OF PUBLIC ACCOUNTS. OMAHA ARMORY BLDG. CO. v. JOHNSON, STATE AUDITOR OF PUBLIC ACCOUNTS, ET AL.
• Court: Supreme Court of Nebraska

119 Neb. 29

226 N.W. 911

APPEAL FROM STATE AUDITOR OF PUBLIC ACCOUNTS.

OMAHA ARMORY BLDG. CO.

v.

JOHNSON, STATE AUDITOR OF PUBLIC ACCOUNTS, ET AL.

No. 26872.

Supreme Court of Nebraska.

Oct. 11, 1929.

Syllabus by the Court.

The Legislature having appropriated funds for an armory for the national guard, it thereupon became the duty of the adjutant general to enter into such lease as was reasonably necessary to provide such armory.

Under section 3358, Comp. St. 1922, the auditor is authorized and required on presentation of proper vouchers to draw his warrant on the general fund and against the appropriation made by the Legislature for the support and maintenance of the national guard.

“When the law imposes a duty upon a public officer to do an official act at a particular time, the obligation is ordinarily a continuing one; and the courts will, when it is practicable, coerce performance after the appointed time has gone by.” State v. Cornell, 60 Neb. 694, 84 N. W. 87.

Appeal from District Court, Lancaster County; Stewart, Judge.

Proceeding by the Omaha Armory Building Company against Lucius B. Johnson, State Auditor of Public Accounts, and another. Judgment for plaintiff, and defendants appeal. Affirmed.John P. Breen, of Omaha, and Geo. W. Ayres and C. A. Sorensen, both of Lincoln, for appellants.

Hall, Cline & Williams, of Lincoln, Brome, Thomas, Ramsey & McGuire, of Omaha, and Richard F. Stout, of Lincoln, for appellee.

Heard before GOSS, C. J., and ROSE, DEAN, GOOD, THOMPSON, EBERLY, and DAY, JJ.

DEAN, J.

This appeal is brought to this court in behalf of the state, by the secretary of state and state auditor, defendants herein, to obtain a reversal of a judgment for $750 rendered against the state in the district court for Lancaster county, in favor of the Omaha Armory Building Company as lessor, a nonprofit organization, hereinafter called the armory, for armory rent alleged to be due from the state and wholly unpaid. The secretary of state and the state auditor, hereinafter referred to as the defendants, disallowed the claim and refused to pay the rent, but, on appeal to the district court, the claim was held to be a lawful charge against the state and was allowed in full for armory rent incurred in 1927 for the months of May and June. And it is from the judgment so rendered that the defendants have appealed.

[1] Following are substantially the material facts: February 1, 1925, the plaintiff armory company entered into a written lease with H. J. Paul, as the adjutant general of Nebraska, on behalf of the state, wherein and whereby the occupancy of an armory at Omaha was provided for the use of the units of the Nebraska national guard to the end that provision might be made for the care and protection of the United States property furnished to the state for national guard equipment. By the terms of the lease, the armory building company rented the premises to the state at a yearly rental of $4,500, payable at the rate of $375 a month on the 15th day of each month. It was agreed that on February 15, 1925, payments were to begin. The monthly rentals were paid as they became due each month prior to May and June of 1927, and on June 8 and July 1, 1927, vouchers for the payment of rentals for May and June were filed by the armory.

Section 3305, Comp. St. 1922, provides that the adjutant general shall be head of the military department, but subordinate to the governor, and that he shall perform the duties of chief of the quartermaster corps, which includes taking care of all public property belonging to his department.

Section 3334, Comp. St. 1922, provides that all such public property, except that in use in the performance of military duty, shall be kept in armories or other properly designated places of deposit. And the following provision is made in section 3359, Comp. St. 1922:

“The adjutant general shall report to the legislature on or before the first day of each biennial session...