State ex rel. Bank v. Gosper Co.

• Decision Date: 26 January 1883
• Citation: 14 N.W. 801,14 Neb. 22
• Parties: STATE EX REL. BANK v. GOSPER CO.
• Court: Nebraska Supreme Court

14 Neb. 22

14 N.W. 801

STATE EX REL. BANK

v.GOSPER CO.

Supreme Court of Nebraska.

Filed January 26, 1883.

Original application for writ of mandamus.

J. S. Gilham, for relator.

A. E. Harvey, for respondent.

BY THE COURT.

This is an application for a mandamus to compel the defendants to include in their estimates of taxes to be levied for the current year a sufficient amount in excess of the highest rate allowed by law to pay a certain warrant of said county for the sum of $743.00. The relator alleges in the affidavit that in the year 1874 the county commissioners of Gosper county levied certain taxes for the general fund of said county, and thereafter, in October of that year, purchased certain blank books of the S. W. Paper Co., which were duly delivered, and the account for the same audited and allowed, and the warrant in question drawn for said account, and thereafter assigned to the relator. It is also alleged that said warrant was presented to the treasurer of said county and not paid for want of funds, and that the same is now registered; that there are no funds in the treasury to pay the same, and said warrant will not be paid unless the defendants are compelled by mandamus to include in the estimate of and levy of taxes for the year a sufficient amount to pay the same. The defendants demur to the application upon the ground that the facts stated therein are not sufficient to entitle the relator to the relief sought. Section 5, art. 9, of the constitution provides that “county authorities shall never assess taxes, the aggregate of which shall exceed one and one-half dollars per $100 valuation, except for the payment of indebtedness existing at the adoption of this constitution, unless authorized by a vote of the people of the county.” The present constitution took effect November, 1875, but the warrant in question was issued prior to that time.

The question presented, therefore, is, is a county warrant such an evidence of indebtedness as to justify the county commissioners in levying a tax in exexcess of the maximum fixed by law for the payment of the same? In 1859 an act was passed by the legislature providing that it should be unlawful for county commissioners to issue warrants in excess of the amount levied by tax for the current year. This act continued in force until 1879, when the commissioners were restricted to 50 per cent., which, in 1881, was extended to 75 per cent. There are also provisions for funding warrants in...