State ex rel. Dakota Co. v. Alexander

• Decision Date: 22 March 1883
• Citation: 15 N.W. 365,14 Neb. 280
• Parties: STATE OF NEBRASKA EX REL. DAKOTA CO. v. ALEXANDER.
• Court: Nebraska Supreme Court

14 Neb. 280

15 N.W. 365

STATE OF NEBRASKA EX REL. DAKOTA CO.

v.ALEXANDER.

Supreme Court of Nebraska.

Filed March 22, 1883.

Mandamus.

E. Wakely and Isaac Powers, Jr., for relator.

C. J. Dilworth, Atty. Gen., for respondents.

LAKE, C. J.

In the answer of the respondents to the alternative writ, but two reasons are given for the refusal to comply with its command to register and certify the bonds in question: First, that the original issue, which these bonds are designed to replace, was in excess of the amount which the county was authorized to vote; second, that the proposed issue has not been submitted to the voters, and is largely in excess of 10 per cent. of the assessed valuation of the taxable property of said county.

The question now presented is whether these reasons are sufficient to justify the defendants in their refusal to perform the required acts, it being conceded that they accord with the facts of the case. The act under which the new bonds were executed is as follows:

“Section 1. That any county, precinct, or city in the state of Nebraska, which has heretofore voted and issued bonds to aid in the construction of any railroad or other work of internal improvement, and which bonds, or any part thereof, still remain unpaid, and remain and are a legal liability against such county, and bearing interest at 10 per cent. per annum, is hereby authorized to issue coupon bonds at a rate of interest not exceeding 8 per cent. per annum, to be substituted in place of and exchanged for such bonds heretofore issued, whenever such county, precinct, or city can effect such substitution and exchange, which substitution and exchange shall be dollar for dollar.

Sec. 2. The new bond so issued shall have recited thereon the object of its issue, the whole of the act under which the issue is made, stating the issue to be in pursuance thereof, and shall also state the number, date, and amount of the bond or bonds for which it is substituted; and such new bond shall not be delivered until the surrender of the bond or bonds so designated.

Sec. 3. The new bonds so issued shall not require a vote of the people to authorize such issue, and they shall be paid, and the levy be made and the tax collected for their payment, in accordance with the laws now governing the said bonds heretofore issued.”

Sess. Laws 1877, p. 224, (Comp. St. 325.)

It will be noticed that by the first clause of the last section of this act a vote of the people upon the question of the issue of bonds under it, is, in express terms, dispensed with. The propriety of replacing old ones by new ones bearing a lower rate of interest is intrusted to the wisdom and discretion of the board of county commissioners, who, it was doubtless presumed, would so act as to subserve the best interests of the tax-payers.

The other question raised by the answer,--that of the excess of each of these issues over the limit fixed by law,--although rather more difficult, may, we think, be readily and satisfactorily answered. The theory of the respondents is that they are authorized and required to now pass upon the legality of the old bonds in performing their duties as to the new. If this were so, their act on in the premises would be entirely justifiable. But, as we view the matter, their only duty respecting the former issue is to determine whether they are in fact internal improvement bonds, and bear evidence of having been lawfully issued. It is conceded that these bonds were issued to aid in the construction of a railroad,--a work of internal improvement,--and were registered and certified to as the law required. It is only by reviewing the action of former officers, by which the bonds are shown to have been properly issued, that they can now say they were unauthorized. This we think they have no right to do. As to them, the questions confided to the judgment of and decided by their predecessors are res adjudicata, and not to be opened. Finding the old bonds thus authenticated, which they concede they do, the only additional inquiry respecting them which they may enter upon is to satisfy themselves, by proper evidence, that the new bonds conform to the formal requirements of the act authorizing such issue. This done, all that remains for them is the ministerial duty of registration, and indorsement as directed by the alternative writ.

Inasmuch as the answer does not question the correctness of the relation respecting the formal requisites of the new bonds, and thus concedes that they meet all of the statutory conditions, it was plainly the duty of the respondents to register and certify them as directed by the alternative writ. There is no principle that we are aware of which will permit the respondents to overturn the action of their predecessors in registering and certifying to the legality of bonds, and a peremptory writ is awarded.

MAXWELL, J., dissenting.

I do not dissent from the statement of the law in the syllabus of this case, but in my view the question at issue is entirely different from that stated therein. It appears from the pleadings that in the winter of 1875-6, and since our present constitution took effect, the county commissioners of Dakota county submitted to the electors...