State ex rel. Clarke v. Cathers

• Decision Date: 14 December 1888
• Citation: 41 N.W. 182,25 Neb. 250
• Parties: STATE EX REL. CLARKE v. CATHERS, SUPERVISOR, ET AL.
• Court: Nebraska Supreme Court

25 Neb. 250

41 N.W. 182

STATE EX REL. CLARKE

v.CATHERS, SUPERVISOR, ET AL.

Supreme Court of Nebraska.

Dec. 14, 1888.

Syllabus by the Court.

1. A claim by a contractor for the construction of a bridge across the Republican river, in Webster county, was duly allowed by the county board in 1875, and a number of payments made thereon up to the year 1881. In 1884 the contractor and the county board made a computation of the amount still due such contractor, which was found to be $1,605.71. Held, that this was not the allowance of a new account, but the determination of the balance remaining due on a claim allowed in 1875, after deducting all payments.

2. Whatever effect the statute of 1879, which authorizes the disallowance of claims after they are allowed, may have, it can only apply to claims allowed since the act took effect, and cannot destroy vested rights in claims allowed before the act took effect.

3. Where an application for a mandamus is submitted to the court upon the petition and answer, there being no testimony in the case, allegations of payment made in the answer must be disregarded.

Mandamus.

Application for writ by Henry T. Clarke to compel the supervisors, clerk, and treasurer of Webster county to make an estimate of the amount due the relator from that county.

Pound & Burr, for relator.

J. S. Gilham, for defendants.

MAXWELL, J.

This is an application for a mandamus to compel the defendants, at their session in January, to make an estimate of the amount due the relator from Webster county. The relator alleges in his petition that the county of Webster, in the state of Nebraska, is a duly organized county in said state, and all of the said defendants are the duly elected, qualified, and acting supervisors of said county, except the said Judson H. Bailey, who is the county clerk of said county, and M. B. McNitt, who is the treasurer of said county of Webster. On the 11th day of January, 1884, J. E. Smith, J. L. Miller, and John McCullen were the duly elected, qualified, and acting board of county commissioners of said county, and on that day, at a regular sitting of said board of county commissioners, at the county-seat, in said county of Webster, and having jurisdiction over the parties and the subject-matter, the following allowance, adjustment, settlement, order, and judgment were rendered by said court and board against the said county of Webster, and in favor of this relator, to-wit:

“The board made a settlement with H. T. Clarke, of Omaha, contractor of a bridge built in 1874, in this county, and made a correction of an indorsement on one contract in error, and transferred into another contract in the proper place; also found on bill for balance due on bridge across the Republican river, filed October 6, 1874, amounting to $2,924.10, the following indorsements: Paid in warrants Nos. 19, 20, 21, and 22, dated July 1, 1875, for $500, $500, $500, and $236.22, respectively; also indorsed on said bill the following, which were not indorsed at the time of the issuing of the warrants, as follows: $136.96, issued on the contract, July 13, 1880, in warrant No. 23; $943.52, issued July 8, 1881, in warrants Nos. 1 and 2, on special bridge fund; and then found that there is due to H. T. Clarke, on the 11th day of January, 1884, the sum of $1,605.71 and interest.

J. P. BAYAM, County Clerk.

J. E. SMITH, County Commissioner.”

In January, 1884, the said board met, and made the estimate of the expenses for said Webster county for the year 1884, and, among other things, declared and found that there should be a levy for special county bridge fund, H. T. Clarke account, the sum of $3,000. On and prior to the 28th day of June, 1887, this relator had several times requested said defendants to make an estimate of relator's said judgment, and to levy a tax for the payment of the same, and, after a great many delays on the part of said defendants, on the said 28th day of January, 1887, the said board of supervisors, at the county-seat of said county, at a regular session and meeting of the said board, did refuse to make an estimate of said judgment, and to levy a tax to pay said judgment; and it is the duty of the said board of supervisors, the defendants, under the laws of the state of Nebraska, to levy said tax, and pay your relator said money and interest, at the rate of 10 per cent. per annum until paid. A copy of the account is attached to the petition, as follows:

“Received July 6, 1875.

+------------------------------+
                ¦Bridge warrant No. 19 ¦$500 00¦
                +----------------------+-------¦
                ¦Bridge warrant No. 20 ¦$500 00¦
                +----------------------+-------¦
                ¦Bridge warrant No. 21 ¦$500 00¦
                +----------------------+-------¦
                ¦Bridge warrant No. 22 ¦$236 22¦
                +------------------------------+
                

HENRY T. CLARKE.

Per W. C. MCLEAN.

We hereby certify that there was due on the within contract, on the 6th day of July, 1879, the sum of $1,970.05.

Witness our hands this 6th day of January, A. D. 1880.

C. W. BALL,

L. H. LULL,

A. H. CRAIG,

Com'ers.

$136.96 issued on this...