State ex rel. Jones v. Graham

• Decision Date: 28 May 1884
• Citation: 19 N.W. 470,16 Neb. 74
• Parties: THE STATE, EX REL. JOHN T. JONES, v. ROBERT B. GRAHAM
• Court: Nebraska Supreme Court

19 N.W. 470

16 Neb. 74

THE STATE, EX REL. JOHN T. JONES, v. ROBERT B. GRAHAM

Supreme Court of Nebraska

May 28, 1884

ORIGINAL application for mandamus.

Writ issued.

A. C Ricketts (Mason & Whedon with him), for relator.

Samuel J. Tuttle, for respondent.

OPINION

COBB CH. J.

This is a relation by John T. Jones, treasurer of the city of Lincoln, against Robert B. Graham, county treasurer of Lancaster county, for a writ of mandamus compelling him to pay certain moneys collected as road taxes on taxable property in said city to the relator as treasurer of said city. The relation is based upon the provisions of the act of the legislature, entitled, "An act to provide for the organization, government, and powers of cities of the second class having more than ten thousand inhabitants," approved March 1, 1883. Comp. Stat., Appendix 1883, chap 14a.

Section 31 of said act provides as follows: "The mayor and council shall have the care, supervision, and control of all public highways, bridges, streets, alleys, public squares, and commons within the city, and cause the same to be kept open and in repair, and free from nuisance. But all public bridges exceeding sixty feet in length, over any stream crossing a state or county highway, shall be constructed and kept in repair by the county;" and section 37 of said act, as follows: "The treasurer of the county shall pay over on demand to the treasurer of any city all money received by him arising from taxes levied belonging to such city, together with all moneys collected as a tax on dogs from residents of such corporation for the use of the general fund therein. And also all the moneys arising from the levy of road tax against or upon property in said city, which shall be expended only upon the streets, grades, and bridges in said city, or within three miles therefrom."

It is set out in the relation that the respondent, as treasurer of Lancaster county, had in his hands on the fourteenth day of May, 1883, and still has, the sum of five hundred and fifty dollars and forty-five cents, arising from the levy of road tax against and upon property in said city of Lincoln, which was by him collected on and prior to March 1, 1883, the time when said act went into effect; also, the further sum of one thousand and thirty-seven dollars and eighty-six cents, money arising from the levy of road tax against and upon property in said city of Lincoln, which was by the said respondent collected subsequent to said first day of March, 1883, and subsequent to the organization of said city of Lincoln under the provisions of the act entitled "An act to provide for the organization, government, and powers of cities of the second class having more than ten thousand inhabitants," approved March 1, 1883, with demand and refusal.

The granting of the writ is resisted, first, on the ground of the alleged unconstitutionality of the act of March 1, 1883. It is claimed that the act under consideration is in violation of section 15 of article III., of the constitution, which prohibits the passage by the legislature of local or special laws in any of the following cases, to-wit: "Incorporating cities, towns, and villages, or changing or amending the charter of any town, city, or village," or "granting to any corporation, association, or individual any special or exclusive privileges, immunity, or franchise whatever."

The substance of these provisions was contained in the first constitution of the state, and was borrowed from the state of Ohio, which, so far as my information extends, was the first state to realize the evils of special and local legislation and to provide a constitutional protection against them. But the experiment, for experiment it was and is, met with a serious impediment in its application to laws for the government of cities. It was found that laws and regulations demanded by and necessary to large cities were not necessary to nor their support within the means of many of the ambitious villages which had become incorporated as cities hence the expedient of classifying the cities of the state according to the population, and enacting general laws applicable to each class respectively. Such laws made applicable only to cities of the first class were upheld, although there were only one or two cities of that class in the state, on the ground that, as the population of the cities of the lower classes was constantly increasing they would or might become cities of the first class, and then such laws would be applicable to them. See Welker v. Potter et al., 18 Ohio St. 85. But in the case of State, ex rel., v. Mitchell, an act of the legislature, which by its provisions was made applicable only to "cities of the second class having a population of over thirty-one thousand at the last federal census, " was held to be in violation...