State ex rel. Burnham v. Babcock

• Decision Date: 05 January 1888
• Citation: 36 N.W. 348,23 Neb. 128
• Parties: STATE EX REL. BURNHAM v. BABCOCK, STATE AUDITOR, ET AL.
• Court: Nebraska Supreme Court

23 Neb. 128

36 N.W. 348

STATE EX REL. BURNHAM

v.BABCOCK, STATE AUDITOR, ET AL.

Supreme Court of Nebraska.

January 5, 1888.

Syllabus by the Court.

An act to amend section 25, c. 18, Comp. St. 1881, was passed and approved March 30, 1887, to take effect from date, and on the succeeding day an act was passed to amend the second division of section 25, c. 18, Comp. St. 1881. Held, that the amendment related to the section 25 as amended on March 30, 1887.

The word “section” when relating to an act passed by the legislature, refers to a subdivision, and although designated in the amendatory act, division 2 of section 25, chapter 18, yet, being in fact a section, it is not in conflict with section 11, article 3, of the constitution.

An act will not be declared unconstitutional and void unless it is clearly so, and where an amendment is so distinctly pointed out that there is no difficulty in ascertaining to what chapter it was intended to apply, and it is germane to the title of the act amended, ordinarily it will be sustained.

Application for mandamus on the relation of S. H. Burnham, to compel the auditor to register and certify certain bonds.Marquett, Deweese & Hall, for relator.

The Attorney General, for respondent.

MAXWELL, C. J.

This is an application for mandamus to compel the auditor to register and certify certain bonds issued by Logan county for the erection of a court-house. The case is submitted upon the following stipulation: “It is hereby stipulated and agreed by and between the parties hereto, that the annexed transcript marked ‘Exhibit A,’ and which is incorporated into and made a part of this stipulation, is a true and accurate history and transcript of all things connected with and pertaining to the voting of $5,000 of bonds of the county of Logan, state of Nebraska, on the first day of October, 1887; said bonds having been presented to the auditor of state for registration, and he having refused to register said bonds solely on the ground that the law of 1887, being chapter 28, entitled ‘An act to amend the second division of sections 25 and 26, chapter 18, of the Compiled Statutes of 1881, so that the county boards shall have power to borrow money and issue bonds for the payment thereof, to erect or otherwise provide the necessary county buildings,’ is unconstitutional and void. It is further stipulated and agreed that the relator herein has purchased the said Logan county bonds, and is the owner thereof. This question is submitted for the consideration and decision of the court. If it shall be held that the law above designated is constitutional and valid, then the writ of mandamus shall be issued to the auditor and secretary of state requiring them to register and certify said bonds above described.”

On the thirtieth day of March, 1887, a bill was duly passed and approved to amend section 25 of chapter 18 of the Compiled Statutes of 1881, as follows: “It shall be the duty of the county board of each county: (1) To cause to be annually levied and collected, taxes authorized by law for county purposes, not exceeding one dollar and fifty cents on the one hundred dollars' valuation, unless authorized by a vote of the people of the county, and in addition thereto sufficient to pay the interest and create a sinking fund for the payment of the principal of all indebtedness which existed at the adoption of the constitution, November 1, 1875. (2) To erect or otherwise provide, when necessary, and the finances of the county will justify it, and keep in repair, a suitable court-house, jail, and other necessary county buildings, and to provide suitable rooms and offices for the accommodation of the several courts of record, the county board, clerk, treasurer, sheriff, clerk of the district court, county superintendent, and county attorney, and to provide suitable furniture therefor; but no appropriation exceeding fifteen hundred dollars shall be made for the erection of any county building, without first submitting the proposition to a vote of the people of the county at a general election, and the same is ordered by two-thirds of the legal voters voting thereon. (3) To provide and keep in repair, when the finances of the county will permit, suitable fire-proof safes for the county clerk and county treasurer. (4) To provide suitable books and stationery for the use of the county board, county clerk, county treasurer, county judge, sheriff, clerk of the district court, county superintendent, and county attorney. (5) To cause to be published at the close of each annual regular or special meeting of the board, a brief statement of the proceedings thereof in one newspaper of general circulation published in the county, and also their proceedings upon equalizations of the assessment roll: provided, that no publication in a newspaper shall be required, unless the same can be done at an expense not exceeding one-third of the legal rate for advertising notices. (6) At their regular meeting in January of each year, to prepare an estimate of the necessary expenses of the county during the ensuing year, the total of which shall in no instance exceed the amount of taxes authorized by law to be levied during that year, including the amounts necessary to meet outstanding indebtedness as evidenced by bonds, coupons, or warrants legally issued, and such estimate, containing the items constituting the amount, shall be entered at large upon their records and published four successive weeks before the levy for that year in some newspaper published and in general circulation in the county, or if none is published there, in some newspaper of general circulation therein, and no levy of taxes shall be made for any other purpose or amount than are specified in such estimate as published; but any item or amount may be stricken from such estimate, or reduced at the time the levy is made. If any levy shall be made in excess of such estimate, the tax shall not therefor be void, but the members of the county board and their sureties shall be jointly and severally liable upon their official bonds for the full amount of such excess, which shall be collected by civil action as in other cases, for the use of the school fund of the county. If the members of the said board neglect to comply with any other provision of this section, the tax shall not therefor be void, but they shall be liable to a penalty of five hundred dollars, to be recovered by civil action as in other cases, for the use of the school fund of the county. (7) That in all cases where any public bridge, or any public building, the property of any county within this state, shall be injured or destroyed by any person or persons, either negligently, carelessly, or willfully and maliciously, it shall be the duty of the county board of the proper county, for and in the name of the county, to sue for and recover such damages as shall have accrued by reason thereof; and the money so recovered shall be paid into the treasury of the proper county, and be by the treasurer credited to the fund out of which the...