State ex rel. Pomarene v. Sabin

• Decision Date: 06 March 1894
• Citation: 58 N.W. 178,39 Neb. 570
• Parties: STATE EX REL. POMARENE ET AL. v. SABIN, TREASURER.
• Court: Nebraska Supreme Court

39 Neb. 570

58 N.W. 178

STATE EX REL. POMARENE ET AL.

v.SABIN, TREASURER.

Supreme Court of Nebraska.

March 6, 1894.

Syllabus by the Court.

A writ of mandamus cannot issue to the treasurer of a school district, requiring payment by him of an order payable by its terms at a fixed time in the future, and in the mean time drawing interest at a rate per centum defined by the terms of the order itself.

Original application, on the relation of Pomarene & Cooper, for mandamus to D. G. Sabin, treasurer. Denied.Lamb, Ricketts & Wilson, for relators.

Steele Bros. and A. J. Evans, for respondent.

RYAN, C.

This proceeding was instituted June 30, 1891, to compel payment by the defendant of an order of which the following is a copy: “$500.00. David City, Nebraska, September 2nd, 1889. State of Nebraska, Butler County. Treasurer of School District No. 56 of Butler County: On the first day of March, 1891, pay to the order of Pomarene & Percival the sum of five hundred and 00/100 dollars out of any money in your hands belonging to the fund for general purposes. Interest 7 per cent. per annum from date until paid. Geo. P. Sheesley, Director. [Countersigned] H. W. Keller, Moderator. No. 14,138.” The relators, in their petition, averred that, by the terms of the instrument aforesaid, it matured on the 1st day of March, 1891, and that the said order, at the time of the commencement of this proceeding, was the property of the relators, whose demand of payment had been refused by the defendant, though the said defendant had in his hands sufficient funds with which to make full payment of the same, and could properly have done so. There was, soon after this action was begun, a reference thereof, and quite a large amount of evidence was taken by the referee in support of the contentions of each party, for which reason it is deemed but fair to decide this controversy, notwithstanding it is one which should not have been brought in this court in the first instance.

The order copied above was of date September 2, 1889, due March 1, 1891, for $500; and, by the terms of the instrument itself, this sum drew interest at the rate of 7 per cent. per annum. This was, therefore, not a mere order drawn against some fund specified and in existence. It was rather an order payable out of a fund entirely to be provided for in the future. In School Dist. v. Stough, 4 Neb. 357, Lake, J., delivering the opinion of this court, said: “Contracts for the erection of a schoolhouse should be made with reference to the funds in the treasury for that purpose. The district board has no authority to draw orders in payment thereof on a fund which has been proposed, but not raised by taxation.” The rule stated is as applicable to orders of the class under consideration as to those referred to in the above opinion, i. e. those for the erection of a schoolhouse. The contract for supplying the school building at David City with steam-heating apparatus was dated July 4, 1889, and required that the work stipulated should be completed by September 2d immediately following. In payment, three so-called “orders” were to be issued, for the sum of $500 each, due, respectively, May 1, September 1, 1890, and March 1, 1891. This was directly issuing evidence of the indebtedness against the school district due, respectively, in 6, 12, and 18 months from date. Notwithstanding the above-quoted language of Judge Lake, the relators insist that the following quotation from Maher v. State, 32 Neb. 369, 49 N. W. 436, 441, justifies the issuance...