State ex rel. Clarke v. Cathers

• Decision Date: 14 December 1888
• Citation: 41 N.W. 182,25 Neb. 250
• Parties: STATE OF NEBRASKA, EX REL. HENRY T. CLARKE, PLAINTIFF, v. G. P. CATHERS ET AL., COUNTY BOARD OF WEBSTER COUNTY, DEFENDANTS
• Court: Nebraska Supreme Court

41 N.W. 182

25 Neb. 250

STATE OF NEBRASKA, EX REL. HENRY T. CLARKE, PLAINTIFF, v. G. P. CATHERS ET AL., COUNTY BOARD OF WEBSTER COUNTY, DEFENDANTS

Supreme Court of Nebraska

December 14, 1888

ORIGINAL application for mandamus.

Peremptory writ granted.

Pound & Burr, for relator.

J. S Gilham, for respondents.

OPINION

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 McCallen 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 subject-matter, the following allowance, adjustment, settlement, order, and judgment was 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 endorsement 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 endorsements: Paid in warrants Nos. 19, 20, 21, and 22, dated July 1, 1875, for $ 500, $ 500, $ 500, and $ 236.22, respectively; also endorsed on said bill the following, which were not endorsed 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 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, J. E. SMITH,

"County Clerk. 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 amongst 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 ten 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

"

No. 20

500.00

"

No. 21

500.00

"

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. CRARY,

"Commissioners."

$ 136.90 issued on this contract July 13, 1880, in warrant No. 18; $ 948.32 issued July 8, 1881, in warrant Nos. 1 and 2 on special bridge fund.

"We hereby certify that there is due on the within contract, on this 11th day of January, A. D. 1884, the sum of $ 1,605.71.

"Witness our hands this 11th day of January, A. D. 1884.

"J. E. SMITH,

"J. L. MILLER,

"J. MCCALLEN,

"Co. Com'rs."

To the foregoing petition the county filed an answer, as follows:

"The defendants say that a writ of mandamus ought not to issue in said cause, for the reason that the pretended judgment and allowance alleged in relator's application was made ten years after the performance of any service or the rendition of any consideration by said Clarke to said Webster county and without the presentation of any claim by said H. T. Clarke, and when there were no funds in said Webster county, or belonging thereto, against which warrants could be drawn in payment thereof, and by a board of commissioners none of whom had ever before any relation to H. T. Clarke, or any pretended consideration he could have rendered to said county; and that thereafter, to-wit, on the 24th day of February, 1888, the board of supervisors of Webster county, Nebraska, instructed the clerk of said county to notify said H. T. Clarke to appear before said board at the June, 1888, meeting thereof, to show cause why said pretended allowance should not be reconsidered and his claim therein allowed disallowed; that immediately thereafter the said Clarke was duly notified to appear at the said June meeting by the said clerk; that at said meeting of said board of supervisors of said Webster county, Nebraska, such proceedings were had as the said...