State, ex rel. Chemical National Bank v. School District No. 9, Sherman County
| Decision Date | 07 October 1890 |
| Citation | 46 N.W. 613,30 Neb. 520 |
| Parties | STATE, EX REL. CHEMICAL NATIONAL BANK, v. SCHOOL DISTRICT NO. 9, SHERMAN COUNTY, ET AL |
| Court | Nebraska Supreme Court |
ORIGINAL application for mandamus.
WRIT DENIED.
Dawes & Foss, for relator.
G. M Lambertson, contra.
Cases cited by counsel are in the main referred to in opinion.
The Chemical National Bank of New York city, as relator, filed its petition August 31, 1888, for a peremptory writ of mandamus to compel the school board of district No 9, of Sherman county, to report the indebtedness of said district, and the rate and amount of taxes required to pay the same, to the county clerk, and the county commissioners commanding them to levy a tax upon all the taxable property of the citizens of said district to pay such indebtedness, or to pay one-third thereof the first year ensuing, and an equal amount annually until the whole be paid, and commanding the county treasurer to collect and retain the same in special fund, and as often as $ 100 should be collected, to pay over the same to the clerk of the supreme court, to be by him paid to the relator, on account of two certain school district bonds, lawfully issued by said district and held by the relator, numbered 5 and 8, respectively, for $ 500 each, dated July 1, 1874, payable in six years from date, with interest at ten per cent per annum, amounting in all to $ 2,105, for the assessment, collection, and payment of which demand had been duly made, which demand has been neglected and refused by said district board and said county officers, and no part thereof has been paid except such interest coupons as became due prior to January 1, 1879, which were paid.
The defendants appeared and demurred to the petition.
I. That it fails to state a cause of action.
II. That the cause of action is barred by the statute of limitations, or did not accrue within five years next preceding the filing of the petition.
The relator claims that the defendants admit, by demurrer, the facts set up in the petition; that district No. 9 is a duly organized school district; that it borrowed, by legal methods, the money represented by the bonds Nos. 5 and 8, used it for school purposes within and for the district, and paid the interest due prior to January 1, 1889.
It contends that the demurrer should be overruled, because "there is no doubtful question of the statute of limitations not running against this cause of action, in any former decisions of this court, as claimed by defendants." That the distinction between a school district warrant, for money due, and a school district bond negotiated for the loan of money, is plain and evident, and ought not to be subject to the operation of the statute of limitations, for the reason that the warrant can only be drawn upon funds already provided and remaining in the treasury, and the bonds are issued as the obligation of the district to pay that amount, at a future day, on the public faith of the officers, and upon the presumption that they will do their duty in levying and collecting taxes in order to pay the bonds according to their legal purport. It contends that, under secs. 645-46-47-48 of the Code, mandamus should always issue where the right to require performance of the act is clear, and where no other specific remedy is provided; and contends further that it is an established doctrine in the construction of statutes of limitation that cases within the reason and not within the words of the statute, as in this instance, are not barred, but may be considered as omitted cases in the act, the legislature not deeming it proper to limit them.
In support of the application, the relator's counsel cites the decisions of the supreme courts in several states. In Smith, Admr., etc., v. Lockwood, Exr., etc., 7 Wend. 241, it was held, in the state of New York, in the year 1831, "That the statute of limitation is not a bar to every action of debt, but only to those brought for arrearages of rent, or founded upon any contract without specialty; and that the settled construction of the statute is, that it applies solely to actions of debt founded upon contracts in fact, as distinguished from those arising from construction of law."
In Bass v. Bass, 23 Mass. 362, 6 Pick. 362, it was held, in Massachusetts, in 1828, in an action between merchants, on an account for goods sold and delivered, that, although in a case in New York Chancellor Kent had reviewed the authorities, and had come to the conclusion that merchants' accounts are within the statute, where there is no item within six years, yet in a case reported 5 Cranch 15, the court maintained the contrary doctrine; and, as the language of the Massachusetts statute is clear, the court will ground its decision upon it. The words of the statute are:
In Jordan v. Robinson, 15 Me. 167, the suit was an action of debt on a judgment of the supreme court of New Brunswick, British Province, rendered in 1818, to which was pleaded the general issue and the statute of limitations. The court held, "That the obligation is not a debt grounded upon any lending or contract within the meaning of the statute, but looking to the consideration of the judgment we find it founded upon an express contract, but one excepted from the operation of the statute, being rendered upon a note in writing for the payment of money, attested by a witness." Judgment was for the plaintiff in the year 1838.
In Keith v. Estill, 9 Port. 669, the action was brought on a judgment of the county court of Franklin county, Tennessee, rendered in 1820. The statute of limitations was pleaded, the plaintiff demurred, and the court overruled the demurrer. The supreme court, in 1840, Ormond, J., said: From this opinion, Goldthwaite, one of the justices, dissented, and said, in his judgment, the plea interposed was a complete bar to the action.
In Bedell v. Janney, 4 Gilm. 192, the supreme court of Illinois, in the year 1847, held that it was then a well established doctrine that cases within the reason but not within the words of the statute of limitation, are not barred, but may be considered as omitted cases which the legislature had not deemed proper to limit."
In the case of Garland v. Scott, 15 La. Ann. 143, it was held by the supreme court of that state, in 1860, that "statutes of prescription and limitation could not be extended from one action to another, nor to analogous cases, beyond the strict letter of the law."
It will not be disputed that anciently from 1550 to 1800, and subsequently, the views and arguments offered by the relator's counsel in this case, and the precedents cited by him, in their own day, were the accepted rule and authority as to the significance and force of the writ of mandamus. But those days are past, and the economy of the law has enlarged the rule. It has been extended in this instance, as in many other remedies, and mandamus from a prerogative writ of the crown, or the state, to enforce an official duty, has modernly come to be an action at law involving all the merits of the inquiry. Hence demurrer is entertained to the relator's information.
The important question raised by the demurrer is that of the statute of limitations applicable to the cause of action described by the relator.
It was given out from this court, as early as 1870, in the case of Brewer v. Otoe County, 1 Neb. 373, that "the section of the Code of Civil Procedure providing that 'an action upon a specialty, or any agreement, contract, or promise in writing, or foreign judgment, can only be brought within five years after the cause of action shall have accrued,' applies as...
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