State ex rel. Grady v. The Bd. of County Commissioners of Lincoln County

• Decision Date: 21 October 1885
• Citation: 25 N.W. 91,18 Neb. 283
• Parties: THE STATE OF NEBRASKA, EX REL. WILLIAM GRADY, v. THE BOARD OF COUNTY COMMISSIONERS OF LINCOLN COUNTY
• Court: Nebraska Supreme Court

25 N.W. 91

18 Neb. 283

THE STATE OF NEBRASKA, EX REL. WILLIAM GRADY, v. THE BOARD OF COUNTY COMMISSIONERS OF LINCOLN COUNTY

Supreme Court of Nebraska

October 21, 1885

ORIGINAL application for mandamus.

Writ of mandamus awarded.

Snelling & Talbot, for relator.

Hinman & Nesbitt, for respondent.

OPINION

REESE J.

The question presented for decision in this case is, whether or not counties have authority to borrow money by the issuance of bonds, for the purpose of constructing a county jail.

It is well settled in this state that counties have no inherent power, and that their commissioners, or agents, acting for them, have only such powers, generally, as are especially granted to them by statute, or such as are incidentally necessary to carry into effect those which are granted. Hallenbeck v. Hahn, 2 Neb. 377. S. C. & P. R. R Co. v. Washington County, 3 Neb. 30. Sexson v Kelley, 3 Neb. 104. The People v. Commissioners of Buffalo County, 4 Neb. 150. Hamlin v. Meadville, 6 Neb. 227. The State, ex rel., v. Buffalo Co., 6 Neb. 454. McCann v. Otoe County, 9 Neb. 324. Walsh v. Rogers, 15 Neb. 309. And the grant of power must be strictly construed. S. C. & P. R. R. Co. v. Washington County, supra, and cases there cited. Sexson v. Kelly, supra. The People v. Commissioners of Buffalo County, supra. Commissioners of Hamilton County v. Mighels, 7 Ohio St. 109. Treadwell v. Commissioners, 11 Ohio St. 183.

In Hamlin v. Meadville, supra, Judge MAXWELL, in writing the opinion of the court, says: "Whatever may be the rule as to municipal corporations, counties have no authority at common law to issue bonds. They are quasi corporations, mere governing agencies charged with certain objects of necessary local administration. The power to issue commercial paper must be conferred by statute, and such power must be exercised in the manner prescribed."

There being no question then upon the necessity of the grant of power before authority exists, it is only necessary to examine the statute and ascertain whether the grant has been made.

Defendants insist that the second subdivision of section 25, and sections 26 to 31, inclusive, of chapter 18 of the Compiled Statutes of 1885, gives the authority to them to issue the bonds. The second clause of section 25 provides that it shall be the duty of the county board of each county "to erect or otherwise provide, when necessary, and the finances of the county will justify it, and keep in repair, a suitable court-house, jail, and other necessary county buildings, and to provide suitable rooms and offices for the accommodation of the several courts of record, the county board, clerk, treasurer, sheriff, clerk of the district court, and county superintendent, and to provide suitable furniture therefor. But no appropriation exceeding fifteen hundred dollars shall be made for the erection of any county buildings, without first submitting the proposition to a vote of the people of the county at a general election, and the same is ordered by two-thirds of the legal voters voting thereon."

The other sections referred to are as follows:

"Sec. 26. Whenever the county board shall deem it necessary to assess taxes the aggregate of which shall exceed the rate of one dollar and fifty cents per one hundred dollars valuation of the property of the county, except when such excess is to be used for the payment of indebtedness existing at the adopting of the constitution, the county board may, by an order entered of record, set forth substantially the amount of such excess required and the purpose for which the same will be required, and if for the payment of interest or principal, or both, upon bonds, shall in a general way designate the bonds and specify the number of years such excess will require to be levied, and provide for the submission of the question of assessing the additional rate required to a vote of the people of the county, at the next election for county officers after the adoption of the resolution. If the proposition for such additional tax be carried, the same shall be paid in money and in no other manner."

"Sec. 27. The mode of submitting questions to the people for any purpose authorized by law, shall be as follows: The whole question, including the sum desired to be raised, or the amount of tax desired to be levied, or the rate per annum, and the whole regulation, including the time of its taking effect or having operation, if it be of a nature to be set forth, and the penalty of its violation if there be one, is to be published for four weeks in some newspaper published in the county. If there be no such newspaper the publication must be made by being posted up in at least one of the most public places in each election precinct in the county, and in all cases the notices shall name the time when such question will be voted upon and the form in which the question shall be taken, and a copy of the question submitted shall be posted up at each place of voting during the day of the election."

"Sec 28. When the question submitted...