State ex rel. Miller v. Board of Commissioners of Lancaster County

• Decision Date: 13 January 1885
• Citation: 22 N.W. 228,17 Neb. 85
• Parties: THE STATE OF NEBRASKA, EX REL. J. G. MILLER, v. BOARD OF COMMISSIONERS OF LANCASTER COUNTY
• Court: Nebraska Supreme Court

22 N.W. 228

17 Neb. 85

THE STATE OF NEBRASKA, EX REL. J. G. MILLER, v. BOARD OF COMMISSIONERS OF LANCASTER COUNTY

Supreme Court of Nebraska

January 13, 1885

ORIGINAL application for mandamus.

Peremptory writ issued.

Harwood Ames & Kelly and Marquett, Deweese & Hall, for relator.

Walter J. Lamb, for respondents.

OPINION

MAXWELL, J.

In January, 1884, the relator applied to this court for a peremptory writ of mandamus to compel the defendants to include in the estimates of taxes to be levied for that year a sufficient amount to refund the taxes paid by him on certain school lands which he had purchased, the title to which remained in the state. An alternative writ was issued, to which the defendants filed an answer. The case was referred to a referee, who heard the testimony and found the facts. In consequence of the necessary delay in the several steps of the proceedings, the case was not ready to be presented to this court for final adjudication until after the time fixed by law for making estimates of the taxes to be levied for the year 1884 had elapsed, hence it was not then considered.

The act authorizing the repayment of taxes paid upon school lands, the title of which was in the state, was held to be constitutional in Washington County v. Fletcher, 12 Neb. 357, and State v. Lancaster County, 13 Neb. 523, and need not now be considered. The principal ground of defense in this case is the repeal of said act.

In 1883 an act was passed, the title of which is as follows: "An act to amend an act entitled an act to provide for the registry, sale, leasing, and general management of all lands and funds set apart for educational purposes and for the investment of funds arising from the sale of such lands, being article I., chapter 80, Compiled Statutes. Also to repeal article three of said chapter 80."

The whole purpose and tenor of the act relate to the sale and leasing of school lands and the disposition of the funds arising therefrom. Article three of chapter 80 is no part of the act amended, nor does it relate to subjects embraced either in the original act or as amended. The only reference to article 3, chapter 80, in the body of the act, is in the last section thereof, and is as follows: "That an act entitled an act to provide for the registry, sale, leasing, and general management of all lands and funds set apart for educational purposes, and the investment of the funds arising from the sale of such lands, approved February 19, A.D. 1877, being article I., chapter 80 of the Compiled Statutes, and also article III. of said chapter 80 is hereby repealed." The attorneys for the relator claim that the House Journals show that the house of representatives in 1883 refused to repeal article III., chapter 80, as an independent measure, the vote being 56 against and 42 in favor of such repeal.

This is not denied by the defendants, and may be considered as admitted. It is pretty clear, therefore, that the...