State ex rel. Douglas County v. Cornell

• Decision Date: 03 March 1898
• Docket Number: 9811
• Citation: State ex rel. Douglas County v. Cornell, 54 Neb. 72, 74 N.W. 432 (Neb. 1898)
• Parties: STATE OF NEBRASKA, EX REL. DOUGLAS COUNTY, v. J. F. CORNELL, AUDITOR OF PUBLIC ACCOUNTS
• Court: Nebraska Supreme Court

74 N.W. 432

54 Neb. 72

STATE OF NEBRASKA, EX REL. DOUGLAS COUNTY, v. J. F. CORNELL, AUDITOR OF PUBLIC ACCOUNTS

No. 9811

Supreme Court of Nebraska

March 3, 1898

ORIGINAL application for mandamus to compel respondent to register funding bonds of Douglas county. Writ allowed.

WRIT ALLOWED.

William D. Beckett, for relator.

C. J Smyth, Attorney General, and Ed P. Smith, Deputy Attorney General, contra.

OPINION

NORVAL, J.

The purpose of this proceeding is to compel the respondent, as auditor of public accounts, to register and certify to the legality of 180 funding bonds of Douglas county of $ 1,000 each. It is disclosed that the proposition to issue these bonds, for the purpose of funding the outstanding indebtedness of the county, was submitted to the electors thereof at the general election held on November 2, 1897; that the total vote cast at said election was 18,762, of which 12,061 votes were in favor of the proposition, and against it 3,749 votes; that the valid outstanding indebtedness of the county proposed to be funded by the issuance of said bonds was drawing interest at the rate of seven per cent per annum, and that the bonds in question bear four and one-half per cent interest per annum, and their issuance does not increase the amount of indebtedness of the county. The respondent has refused to register or to certify as to said bonds for the reason he is in doubt whether section 30, or section 134 of article 1, chapter 18, Compiled Statutes, determines the number of votes necessary to authorize the issuance of funding bonds. The proposition for funding the indebtedness of the county did not receive two-thirds of all the votes cast at the election; hence, if said section 30 applies, the bonds failed to receive a sufficient vote in their favor. On the other hand, if said section 134 governs and controls this case, it is conceded the bonds were legally carried, and are entitled to registration as valid obligations of the county, inasmuch as the bond proposition received a majority of all the votes cast at the election.

Said section 30, requiring two-thirds of all the votes cast at an election to adopt a proposition submitted to a vote of the people of a county involving the issuance of bonds is a general provision, and applicable to all kinds of bonds, where there is no special law upon the subject. It is plain that sections 132 to 136, inclusive, of said article 1, chapter 18, Compiled Statutes, in express terms relate exclusively to the subject of funding county indebtedness, and to the issuance of bonds for that purpose. Section 134 provides, inter alia, "That where, by the issuance of the proposed bonds, the rate of interest on said indebtedness will be reduced, and the amount of the indebtedness will not be increased, a majority of the votes cast shall be sufficient to adopt the proposition." The foregoing is a specific provision relating solely to a particular subject, namely, the issuing of bonds for the purpose of funding county indebtedness, and is applicable in all cases where such bonds diminish the rate of interest on the indebtedness, and the amount of the indebtedness is not thereby increased. It is a firmly established rule of construction in this state that special provisions in a statute in regard to a particular subject, control general provisions. This principle was determined in State v. Cornell, 53 Neb. 556, 74 N.W. 59, where the authorities upon the question are collated.

After the submission of the cause, and the foregoing portion of this opinion had been prepared, a reargument was ordered by the court, on its own motion, upon the proposition whether the proviso clause of said section 134, already quoted, is inimical to that part of section 11, article 3, of the constitution, which provides that "no bill shall contain more than one subject, and the same shall be clearly expressed in its title." Counsel for relator, in compliance with the suggestion of the court, has filed a brief in support of the validity of the law, which he has supplemented with an able oral argument at the bar. Consideration will now be given to the constitutional question already mentioned.

The legislature of 1879 passed a law entitled "An act concerning counties and county officers" (Session Laws 1879, p. 353), which has been carried into the various editions of the Compiled Statutes as article 1 of chapter 18. Sections 132 and 134 of said act are in the language following:

"Sec 132. The county board of any county in the state of Nebraska are hereby authorized and empowered to issue coupon bonds of such denominations as they may deem best, sufficient to pay the outstanding and unpaid warrants and indebtedness of such county; Provided, That the county board of any such county may limit the provisions of this sub-division to any fund or funds of said county; Provided, further, That in no event shall bonds be issued to a greater amount than ten per...