State ex rel. Long v. Barstler

• Court: Nebraska Supreme Court
• Writing for the Court: GOSS, C. J.
• Citation: State ex rel. Long v. Barstler, 122 Neb. 167, 240 N.W. 273 (Neb. 1931)
• Decision Date: 31 December 1931
• Docket Number: 28175
• Parties: STATE, EX REL. THURSTON J. LONG, APPELLEE, v. ARTHUR H. BARSTLER, COUNTY CLERK, APPELLANT

240 N.W. 273

122 Neb. 167

STATE, EX REL. THURSTON J. LONG, APPELLEE, v. ARTHUR H. BARSTLER, COUNTY CLERK, APPELLANT

No. 28175

Supreme Court of Nebraska

December 31, 1931

APPEAL from the district court for Otoe county: JOHN B. RAPER JUDGE. Reversed.

REVERSED.

Syllabus by the Court.

1. To warrant the issue of mandamus against an officer to compel him to act, (1) the duty must be imposed upon him by law, (2) the duty must still exist at the time the writ is applied for, and (3) the duty to act must be clear.

2. Ordinarily mandamus will not lie against a county clerk compelling him to levy a tax certified to him after he shall have completed the tax list duly levied by the county board of equalization and delivered it to the county treasurer. Comp. St. 1929, § 77-1801.

Appeal from District Court, Otoe County; Raper, Judge.

Mandamus proceeding by the State of Nebraska, on the relation of Thurston J. Long, against Arthur H. Barstler, County Clerk of Otoe County, and others. From a judgment granting a peremptory writ of mandamus, the defendant named appeals.

Reversed.

George H. Heinke, for appellant.

Andrew P. Moran, Edwin Moran and D. W. Livingston, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.

OPINION

GOSS, C. J.

The defendant appeals from a judgment granting a peremptory writ of mandamus against him.

At the regular election in the city of Nebraska City on November 4, 1930, a majority of the electors voted for a proposition submitted, to the effect that the proper officers of the city should make an annual levy on all taxable property in the city sufficient to raise annually the sum of $ 1,800 for a period of four years, to provide for the salary and expenses of a visiting, community nurse for the city. Comp. St. 1929, sec. 71-2407. Under this statute it is the duty of the city authorities to include the item in the estimate for expenses during the period for which adopted. The tax is to be levied and collected in the same manner as other taxes.

The city authorities failed to include this item, or any amount for this purpose, with the other city expenses required to be included in their estimate certified to the county clerk and to be levied on the last day of its sitting by the county board of equalization. Comp. St. 1929, sec. 77-1801, amended, Laws 1931, ch. 137, Comp. St. Supp., sec. 77-1801. This last day of sitting in 1931 was on August 5 and the tax levied by the board for Nebraska City purposes of course did not include this item. The total levy for Nebraska City was 14 mills. Had this item been certified and levied it would have made a total levy of 14.35 mills. Thereupon, on August 8, 1931, this same relator brought a mandamus action against the city, its mayor and commissioners, to compel them to certify the item in question to the county clerk to be included in the taxes of 1931. On August 29, 1931, after a full trial, the court granted a peremptory writ, ordering the city officials to convene and certify the amount to the county clerk within 30 days. The respondents were denied supersedas, but appealed that cause to this court, where it is pending as No. 28192. However, on September 26, 1931, they obeyed the unsuperseded order, made an amended estimate as commanded, including the levy for the visiting nurse fund, certified it and delivered the certificate to the county clerk on September 28, 1931. Section 77-1801, Comp. St. 1929, provides: "Any such taxes * * * certified to the county clerk, after the county board shall have made such levy and before the county clerk shall have completed the tax list, shall be levied by the county clerk, if within the limit of the law, and extended upon the tax list the same as if levied by the county board."

After the county board of equalization adjourned on August 5, 1931, all taxes levied by that board were certified to the county clerk and he proceeded to compute the taxes and extend them on the tax list in suitable books, properly ruled, headed and prepared in the manner provided by law. Section 77-1806, Comp. St. 1929, requires him to complete and deliver the tax list to the county treasurer on or before the 1st day of November annually. The county clerk completed and delivered the tax list to the county treasurer on September 19, 1931. So that list did not include the levy for the purposes of a visiting nurse for Nebraska City because, as we have recited, the certificate for that purpose was not actually delivered to him until September 28, 1931.

Upon receiving the certificate, as to this additional levy, on September 28, 1931, the county clerk refused to place the levy upon the tax books of the county. Nothing was done for nearly four weeks until on October 24, 1931, when this mandamus action was begun to compel him to enter the levy upon the tax books. He demurred to the alternative writ and affidavit upon which it was based. Upon the overruling of the demurrer, he answered, setting up most of the historical facts above stated, reciting the expenses and difficulty of revising or rewriting the lists, and pleading lack of legal authority to add the tax. Upon issues joined there was a trial to the court on October 30, 1931, and on the same day a peremptory writ was granted commanding the county clerk forthwith to enter the special levy. The final order dismissed the county treasurer and the county attorney, who were also respondents. Motion for new trial was overruled and the court denied a request to allow supersedeas. The cause was promptly appealed here and on November 5, 1931, we allowed a supersedeas. The bond was approved and filed November 7, 1931. Most of the facts were stipulated.

The evidence shows that the rewriting or interlining of the tax lists, if done in that way, so as to show this additional levy, would require thousands of entries upon upwards of 200 pages, would take two or more weeks of time with the defendant's usual office force and one additional person to be hired for that purpose, with its necessary cost and interference with the usual work of the clerk's office that the treasurer has had 11,000 tax receipts printed with the usual and necessary matter on the front and back, but not devised with a view to this additional tax; that on October 30, 1931, at the time of the trial, 170 tax receipts had already been issued by the county treasurer, receipting "in full for the following taxes for the year 1931," the printed receipt showing on the back thereof a total levy of 14 mills for Nebraska City and the front thereof showing in its proper column the amount of the tax paid by the city taxpayer. It is fair to assume that since the date of the trial several hundred would have paid their city taxes in the usual course and to avoid interest The...