State ex rel. Marquett, Deweese & Hall v. Baushausen
| Decision Date | 05 November 1896 |
| Docket Number | 5875 |
| Citation | 68 N.W. 950,49 Neb. 558 |
| Parties | STATE OF NEBRASKA, EX REL. MARQUETT, DEWEESE & HALL, v. A. BAUSHAUSEN ET AL |
| Court | Nebraska Supreme Court |
ORIGINAL application for mandamus to compel the supervisors of Sherman county to draw a warrant in favor of relators in payment of their claims against the county.
WRIT DENIED.
A. G Greenlee, F. M. Hall, and J. W. Deweese, for relators.
Lung & Mathew and Emerson A. Smith, contra.
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 relators' 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 relators subsequently 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, sec. 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. Ency. of 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 doctrine just quoted, in somewhat different language, is laid down in Moses, Manamus, 127; 2 Dillon, Municipal Corporations, sec. 867; United States v. Town of Brooklyn, 8 F. 473, 10 Biss. 466; Commonwealth v. City of Pittsburgh, 34 Pa. 496, 512; State v. Clinton County, 6 Ohio St. 280; Supervisors v. Thompson, 61 F. 914; Maddox v. Graham, 59 Ky. 56, 2 Met. 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 of Hudson County, 35 N.J.L. 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 resolution passed by the respondents declaring the election of the relators to be void and to allow the sitting members to retain their seats that they did not intend to admit them. So in the case at bar, the reconsideration of the action of the board of supervisors in allowing relators' claims, and afterwards disallowing the same, amounted, substantially, to a refusal to perform the act now sought to be enforced, and no formal demand was therefore necessary.
Relators have also excepted to the first conclusion of law made by the referee. By the sixth subdivision of section 25, article 1 chapter 18, Compiled Statutes, it is made the duty of the county board, at their regular meeting in January of each year, to prepare and publish an estimate of the necessary expenses of the county during the ensuing year, and it is also provided that no levy of taxes shall be made for any other purpose or amounts than are specified in such estimate as published. Section 34 of said article and chapter declares: "It shall be unlawful for the county board of any county in the state to issue any warrants for any amount exceeding the...
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