State ex rel. Heintze v. Adams County

• Citation: 75 N.W.2d 539,162 Neb. 127
• Decision Date: 09 March 1956
• Docket Number: 33950,33968,33958,Nos. 33947,33965,s. 33947
• Parties: STATE of Nebraska ex rel. Frank B. HEINTZE, Appellee, v. COUNTY OF ADAMS et al., Appellees, Impleaded with County of Douglas, Appellant. STATE of Nebraska ex rel. Frank B. HEINTZE, Appellee, v. COUNTY OF ADAMS et al., Appellees, Impleaded with County of Sarpy, Appellant. STATE of Nebraska ex rel. Frank B. HEINTZE, Appellee, v. COUNTY OF ADAMS et al., Appellees, Impleaded with County of Box Butte, Appellant. STATE of Nebraska ex rel. Frank B. HEINTZE, Appellee, v. COUNTY OF ADAMS et al., Appellees, Impleaded with County of Lancaster, Appellant. STATE of Nebraska ex rel. Frank B. HEINTZE, Appellee, v. COUNTY OF ADAMS et al., Appellees, County of Stanton, Appellant.
• Court: Supreme Court of Nebraska

Page 539

75 N.W.2d 539

162 Neb. 127

STATE of Nebraska ex rel. Frank B. HEINTZE, Appellee, v. COUNTY OF ADAMS et al., Appellees, Impleaded with County of Douglas, Appellant.

STATE of Nebraska ex rel. Frank B. HEINTZE, Appellee, v. COUNTY OF ADAMS et al., Appellees, Impleaded with County of Sarpy, Appellant.

STATE of Nebraska ex rel. Frank B. HEINTZE, Appellee, v. COUNTY OF ADAMS et al., Appellees, Impleaded with County of Box Butte, Appellant.

STATE of Nebraska ex rel. Frank B. HEINTZE, Appellee, v. COUNTY OF ADAMS et al., Appellees, Impleaded with County of Lancaster, Appellant.

STATE of Nebraska ex rel. Frank B. HEINTZE, Appellee, v. COUNTY OF ADAMS et al., Appellees, County of Stanton, Appellant.

Nos. 33947, 33950, 33958, 33965, 33968.

Supreme Court of Nebraska.

March 9, 1956.

Syllabus by the Court.

1. In an action in equity, it is the general rule that an appeal brings up the whole case, and that the appellate court passes upon the record as to the facts as well as to the law.

2. By statute, it shall be the duty of the county attorney to prosecute or defend, on behalf of the state and county, all suits, applications, or motions, civil or criminal, arising under the laws of the state, in which the state or the county is a party or interested.

3. It is the general rule that one may not voluntarily accept payment of that part of a judgment in his favor and afterwards prosecute an appeal from the part which is against him.

4. By statute, an attorney is entitled to receive money claimed by his client, in an action or proceeding, during the pendency thereof or afterwards, unless he has been previously discharged by his client. The same rule is applicable to a county attorney representing the county in litigation wherein the state and the county are parties.

5. The doctrine of estoppel may be applied in a controversy where the state, county, or city, or any other government agency is involved.

August Ross, Eugene F. Fitzgerald, Omaha, for appellant Douglas County.

John J. Wilson, Woods, Aitken & Aitken, Van Pelt, Marti & O'Gara, Lincoln, for appellee State ex rel. Heintze.

Chambers, Holland & Groth, Lincoln, Keith J. Kovanda, Burwell, for appellee Adams County.

Dixon G. Adams, Papillion, for appellant.

Robert R. Moran, Hemingford, for appellant Box Butte County.

Elmer Scheele, Dale E. Fahrnbruch, Richard S. Harnsberger, Edward F. Carter, Jr., Lincoln, for appellant Lancaster County.

T. L. Grady, Stanton, for appellant Stanton County.

Heard before MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

This action was brought in the district court for Lancaster County, Nebraska, by the State of Nebraska ex rel. Frank B. Heintze, plaintiff, against the 93 counties of the State of Nebraska as defendants, the purpose of the action being to obtain a declaratory judgment to determine the validity and interpretation of certain statutes relating to what is commonly referred to as the gasoline tax fund, and with reference to the distribution of certain gasoline taxes and equalization fees by the State Treasurer to the various counties. The sum of $2,912,828.56 was deposited with the clerk of the district court for Lancaster County, which amount constituted receipts of the gas tax fund held for distribution to be made by the State Treasurer to the 93 counties of the state.

The pleadings, insofar as necessary to disclose the issues presented to the trial court for decision, may be summarized as follows.

The plaintiff's amended petition alleges in substance that the plaintiff is the Treasurer of the State of Nebraska; that the defendants are each a county established in the State of Nebraska according to law; that sections 60-203 and 66-422, R.R.S.1943, and sections 66-424.01 and 66-604, R.S.Supp., 1953, purport to direct the manner of allocation and distribution of certain funds by the plaintiff to the various counties of the state, the defendants herein; that said funds have been allocated and distributed under the provisions of section 66-422, R.R.S.1943, prior to October 1953, on the basis of the 1940 federal census and motor vehicle registrations for the previous calendar year, as and when the same became available; that said funds have been allocated and distributed since October 1953 on the basis for the 1950 federal census and motor vehicle registrations for the previous calendar year, as and when the same became available; that a controversy exists as to the validity and interpretation of the statutes heretofore set forth; and that some of the defendants claim to have received less than their lawful distributive share of such funds and the plaintiff claims, if such is the case, that some of the defendants have received distributions in excess of their lawful share of such funds, and that, in all events the total distribution of such funds which may have been received by some of the defendants, in excess of that to which such defendants are lawfully entitled, will equal in amount the total deficiencies in the distribution of such funds which may have been received by other defendants.

The amended petition further alleges that the following matters of interpretation should be determined and declared: (a) The time at which the United States government census for the year 1950 became effective and operative, within the meaning of the statutes heretofore set forth; (b) The entire non-farm population of the state and the entire non-farm population of each of the respective defendants, as shown by the last United States government census; (c) The entire population outside of cities and incorporated villages of the state and the population outside of cities and incorporated villages of each of the defendants, as shown by the last United States government census; and (d) The total motor vehicle registrations of the state and the total motor vehicle registrations of each of the defendants for the calendar years 1949 to 1953, both inclusive; that in order to resolve the controversy between the parties, it should be determined and declared in what amounts each of the defendants received distributions in excess of, or less than, as the case may be, the amount to which each such defendant was lawfully entitled during the period from January 1, 1950, to date; that the amount of such funds which have been distributed to some defendants, in excess of that to which such defendants are lawfully entitled, should be deducted from future distributions of such funds to such defendants; and that the deficiency of such funds which have been distributed to other defendants, less than that to which such defendants are lawfully entitled, should be added to future distributions of such funds to such defendants.

The amended petition then alleges that Frank B. Heintze is retiring from the office of State Treasurer, and that there is an accumulation of funds involved herein, distribution of which has been withheld pending the final adjudication herein, in the amount of $2,912,828.56 which said sum is herewith deposited with the court, and that the same may there abide and be subject to the final order of this court concerning the distribution thereof. The prayer is for a declaratory judgment to conform to the issues raised by the amended petition.

The County of Douglas, and certain other counties of the state which would receive a larger proportion of the funds in the hands of the clerk of the district court for Lancaster County if the 1950 federal census were applied than if the 1940 federal census were applied, filed answers, and in some cases cross-petitions, asking, among other things, that the 1950 federal census be applied from and after August 12, 1951. The use of the 1940 federal census for a period of time until the State Treasurer used the 1950 federal census as shown by the decree would affect the distribution of funds to certain counties.

We believe a summation of the pertinent parts of the cross-petition filed by Douglas County should be set forth for the reason that it raises issues that Douglas County and some other counties deemed pertinent to a decision by the trial court. This cross-petition contained two causes of action, the first, in substance, alleged that Frank B. Heintze, State Treasurer of Nebraska, received money under sections 66-410 and 66-428, R.R.S.1943; that section 66-422, R.R.S.1943, provided for the method of allocation and distribution of said funds; that the State Treasurer did not allocate and distribute said funds as provided thereby; that said State Treasurer received funds under section 60-201, R.R.S.1943, and that said funds were not allocated and distributed by the State Treasurer in the manner provided by law; and that as the result of the neglect and failure of the State Treasurer to properly disburse the funds received by him as the law required, the cross-petitioner sustained a loss of money due it. The prayer was for an accounting to be had of the funds received by the State Treasurer under the sections of the statutes set forth, and that the court find and determine the amount due Douglas County.

The first cause of action also alleged that the Maryland Casualty Company was the surety on the bond of the State Treasurer, and prayed for judgment against the defendant Maryland Casualty Company and for such other relief as equity might require.

The second cause of action set forth that the Indemnity Insurance Company of North America, a corporation, was the surety on the State Treasurer's bond; re-alleged the sections of the statutes set forth in the first cause of action and the improper allocation of the funds made by the State Treasurer which did not conform to the law; and alleged that as a result thereof, the County of Douglas lost a considerable amount of money. The prayer was the same as in the first cause of action and requested judgment to be entered against the Indemnity Insurance Company of North America.

Sixty-three of the counties, appellee...