State ex rel. Marquett v. Bushhausen

• Decision Date: 05 November 1896
• Citation: 68 N.W. 950,49 Neb. 558
• Parties: STATE EX REL. MARQUETT ET AL. v. BUSHHAUSEN ET AL.
• Court: Nebraska Supreme Court

49 Neb. 558

68 N.W. 950

STATE EX REL. MARQUETT ET AL.

v.BUSHHAUSEN ET AL.

Supreme Court of Nebraska.

Nov. 5, 1896.

Syllabus by the Court.

1. The pleadings in proceedings in mandamus have the same effect and are to be construed as in ordinary civil actions. Hence a material averment in a petition for mandamus, not denied by the answer, is to be taken as true.

2. As a general rule, mandamus will not issue at the suit of a private individual to compel a public officer to do any official act until a demand has been made upon him to do it. But a formal demand is unnecessary where the conduct and action of the respondent is equivalent to a positive refusal.

3. The allowance of a writ of mandamus to compel a county board to include relator's claim in its estimates of the taxes to be levied for the ensuing year is not necessarily an adjudication that a definite sum is due from the county to the relators.

4. Under section 40 of the act of the legislature of 1879 entitled “An act concerning counties and county officers” (Comp. St. 1895, c. 18), a county board has authority to once reconsider its action in the allowance of a claim against the county upon notice to the parties interested.

5. The formal notice required by said section to be given may be waived by the person entitled thereto.

6. Where a claim presented to a county board for examination and audit is disallowed, which decision is appealed from by the claimant, and he afterwards dismisses such appeal, the action of the board is final and conclusive.

Original application by the state, on the relation of Marquett, Deweese & Hall, against A. Bushhausen and others, constituting the board of supervisors of Sherman county, for mandamus. Denied.A. G. Greenlee, for relators.

Long & Mathew, for respondents.

NORVAL, J.

This is an application for a peremptory writ of mandamus to compel the respondents, as supervisors of Sherman county, to draw a warrant in favor of the relators in payment of certain claims against the county. The respondents filed an answer to the petition, and the relators interposed a general demurrer thereto, which was overruled at the September term, 1892. This court subsequently appointed a referee to take the testimony and report the same to the court with his findings of facts and conclusions of law thereon. Upon the coming in of the report of the referee, each party filed exceptions thereto, which have been argued, and submitted for consideration. It appears from the proofs, and the referee substantially so found, that in 1890 relators filed with the county clerk of Sherman county three claims against the county for legal services, aggregating $1,100; that at a session of the board of supervisors held on January 16, 1891, there was allowed on said claims $800, and relators, by their attorney, at the time agreed to accept said sum in full payment of said claims; that on June 12, 1891, the county board, without notice to relators, reconsidered its action in allowing relator's claims, and ordered the county clerk not to issue a warrant thereon, and further consideration of said claims was postponed; that on June 15, 1891, J. W. Long, the attorney for relators, was notified that further action on said claims would be taken by the county board, which was then in session, and said Long on said day appeared before the board, and, at his request, further consideration of said claims was laid over until the next meeting; that on September 16, 1891, the county board, when Long was present, disallowed the claims, and notice of appeal from the decision was then given; that relatorssubsequently appealed to the district court, and afterwards dismissed their said appeal; that, in pursuance of a writ of mandamus issued out of this court, the claims were included by the board in the estimate of expenses for the year 1892, and there is a sufficient amount in the county treasury, together with the taxes levied, out of which the warrant can be paid; that no formal demand that a warrant be issued relators was ever made upon the county board of Sherman county. The referee found as conclusions of law, in effect: (1) That the granting of the writ of mandamus by the court to compel the county board to include the claims of the relators in their estimate of taxes to be levied for 1892 was not an adjudication of the amount due from the county to relators. (2) In this action the merits of the claims cannot be inquired into, since the action of the county board in allowing the same is conclusive, unless reversed or modified on appeal. (3) The county board, in passing upon the claims of relators, acted judicially, and it had no power to reconsider its action thereon. (4) The appeal taken from the reconsideration and disallowance of relators' claims was a nullity, and did not affect relators' rights. (5) Where the party instituting a suit in mandamus has a private interest in, or claims the immediate benefit of, the act sought to be coerced, he must allege and prove a demand upon the officer to perform said act, in order to maintain the suit. (6) That, as no demand upon the respondents has been proved, the writ should be denied.

Exception is taken by the relators to the conclusion of law last above stated, and we think the exception should be sustained, for the reasons hereafter given. In the application for the writ it is expressly alleged that the respondents have refused to draw a warrant in favor of the relators in payment of their claims. This averment is not denied or put in issue by the answer. On the contrary, the respondents plead matter in justification of their refusal to issue a warrant upon the claims. The answer must, therefore, be treated as an admission of a prior demand and refusal, and relators were not called upon to establish the same by the proofs. The pleadings in proceedings in mandamus have the same effect and are to be construed as in ordinary civil actions. Code, Civ. Proc. § 653. Hence a material averment in the application, not denied in the answer, must be taken as true. State v. Hawes, 43 Ohio St. 16, 1 N. E. 1; 14 Am. & Eng. Enc. Law, 330. The writ should not be refused merely for the failure to prove a demand upon the respondents for another reason. The answer pleads a reconsideration of the former action of the board in allowing the claims, the subsequent disallowance, the appeal from said decision by the respondents to the district court, and the dismissal of the action in that court. The defenses pleaded plainly disclose a determination not to draw the warrant or pay the claim. A formal demand upon the respondents, had one been made, in view of the answer and the evidence adduced before the referee, would have been unavailing. A refusal to draw the warrant was based upon grounds other than that no demand therefor had been made. Ordinarily, when an application for mandamus is made by a private party, a demand must be made upon the respondent to perform the duty prior to the commencement of the action. Kemerer v. State, 7 Neb. 130; State v. Eberhardt, 14 Neb. 201, 15 N. W. 320;State v. Smith, 31 Neb. 590, 48 N. W. 468. But there is an exception to the rule, as firmly established as the rule itself. A demand or refusal to perform the duty is not necessary in all cases before a suit of mandamus will lie. In the language of Mr. Merrill in his work on Mandamus (section 225): “The law never demands a vain thing, and, when the conduct and action of the officer is equivalent to a refusal to perform the duty desired, it is not necessary to go through the useless formality of demanding its performance. Anything showing that the defendant does not intend to perform the duty is sufficient to warrant the issue of a mandamus.” The doctrine just quoted, in somewhat different language, is laid down in Mos. Mand. 127; 2 Dil. Mun. Corp. § 867; U. S. v. Town of Brooklyn, 10 Biss. 466, 8 Fed. 473; Com. v. Pittsburgh, 34 Pa. St. 496, 512; State v. Clinton Co., 6 Ohio St. 280;Supervisors v. Thompson, 10 C. C. A. 154, 61 Fed. 914;Maddox v. Graham, 2 Metc. (Ky.) 56.Palmer v. Stacy, 44 Iowa, 340, was an application for a mandamus to compel the levy of a tax for the payment of a judgment against the bank of Algona. No demand was made upon the defendant to perform the act, yet the court held this was not fatal, since it was disclosed that the defendants had no intention to levy the tax. State v. Freeholders, 35 N. J. Law, 269, was a rule for mandamus to respondents to receive relators as members of the board of chosen freeholders of the county of Hudson. It was held that a formal demand to be admitted was not necessary, because it was manifest from the...