Syllabus by the Court.
1. In 1877 the legislature passed “An act to authorize the issue of county bonds in certain cases.” This provided for issuing refunding
bonds to replace bonds issued to railroad companies or any work of internal improvement. This act was carried in the Compiled Statutes of 1881, as sections 11-13, c. 45. In 1883 the legislature passed an act to authorize counties to issue refunding bonds at not to exceed 6 per cent. interest, to replace other bonds previously issued by the county, and then payable. Held, that the act of 1883 applied to all bonds previously issued by a county, and then payable.
2. The act of 1883 is a complete act, covering the whole of the matter embraced in the act of February 19, 1877, and repeals the first-named act by implication.
3. In 1885 the legislature passed an act amending sections 11-13, c. 45, Comp. St., which had been repealed by implication by the act of 1883. Held, that the amendatory act of 1885 was invalid.
4. Under the act of 1883, where a county has issued refunding bonds, bearing interest at 6 per cent., it may, after such bonds are payable, issue other refunding bonds at a lower rate of interest, as 4 1/2 per cent., to replace them.
Mandamus on relation of Seward county to Thomas H. Benton, state auditor of public accounts, to compel him to register and certify certain bonds. Writ allowed.
MAXWELL, C. J.
The plaintiff complains of the defendant, and states “that the plaintiff is a county of the state of Nebraska, duly and legally incorporated and organized under the laws of the said state, and the defendant is the duly and legally elected, qualified, and acting auditor of public accounts of the said state, and charged by law with the performance of the duties hereinafter mentioned. (2) The plaintiff further states to the court that on and prior to the 1st day of June, A. D. 1884, the plaintiff county was indebted to sundry persons in the sum of $104,000, said indebtedness being evidenced by certain coupon bonds for the said amount duly and legally issued by the said county. (3) That on the 1st day of June, 1884, the plaintiff county, by virtue of the power conferred upon it by chapter 18 of the Statutes of Nebraska, to-wit, the act entitled ‘An act to authorize counties to issue bonds for refunding their bonded indebtedness, and provide for registering and certifying the same, and for levying a tax to pay the interest and principal thereof,’ which said act was approved and took effect February 28, 1883, under and by virtue of the power therein conferred, in the manner therein provided, issued its refunding bonds in the sum of $104,000; said bonds being dated the 1st day of June, 1884, bearing interest at the rate of 6 per cent. per annum, payable semi-annually, and due on or before 20 years after the date thereof, at the option of the plaintiff county. That the said bonds were issued in strict accordance with the law in such cases made and provided, and were duly and legally registered and certified by the auditor of public accounts and secretary of state, and, after being so registered and certified in the manner provided by law, the same were sold, and with the proceeds derived from the sale thereof the plaintiff county paid off the indebtedness herein first mentioned the bonds evidencing the same being canceled and surrendered up to the plaintiff county. (4) The plaintiff states that the bonds so issued on the 1st day of June, 1884, were a legal and binding obligation against the said county of Seward, and constitute a valid debt of the same. (5) The plaintiff further states that the interest upon the bonds so issued on the 1st day of June, 1884, has all been paid up to and including the interest that fell due on the 1st day of June, 1891, but that no part of the principal thereof has been paid, except $4,000 thereof, nor has the said county levied or collected any taxes or assessments with which to pay the principal thereof, except as hereinbefore stated. (6) The plaintiff further states that prior to the 1st day of May, 1891, a contract was entered into by and between the holders of the said bonds so issued on the 1st day of June, 1884, and the plaintiff county, by the terms of which the said holders of the said bonds agreed to accept, in substitution and exchange for the said bonds so issued on the 1st day of June, 1884, refunding bonds of the plaintiff county in the sum of $100,000, said bonds to bear interest at the rate of 4 1/2 per cent. per annum, payable semi-annually, bearing date the 15th day of May, 1891, and due in 20 years after the date thereof, or at any time the plaintiff county might elect after five years from date thereof; said substitution and exchange to be made on the basis of dollar for dollar, i. e., refunding bonds for $100,000, dated May 15, 1891, bearing 4 1/2 per cent. interest, and dated the 1st day of June, 1884; and this plaintiff states that, as it has reason to believe and does believe, both parties to the said contract are willing to fully carry out and execute the terms of the same, as herein set forth. (7) The plaintiff further states that, for the purpose of carrying out the terms and provisions of the said contract, and for the purpose of lawfully issuing its refunding bonds to be so substituted and exchanged, the county board of the said plaintiff county, at a regular session thereof held on the 3d day of March, 1891, authorized the issuance of the said bonds, and adopted certain resolutions relative thereto, a true and certified copy of which is hereto attached, marked ‘Exhibit A,’ and made a part thereof. (8) The plaintiff states that in pursuance of the said action and resolution of the said county board, and by virtue of the power conferred upon the said plaintiff county by that part of chapter 18 of the Statutes of Nebraska more fully described as the act passed, approved, and which took effect February 28, 1883, being ‘An act to authorize counties to issue bonds for refunding their bonded indebtedness, and provide for registering and certifying the same, and for levying a tax to pay the interest and principal thereof,’ the said county issued its said bonds in the sum of $100,000, bearing date the 15th day of May, 1891, bearing interest at the rate of 4 1/2 per cent. per annum, said bonds being numbered from 1 to 100, inclusive, and each for the sum of $1,000, the same being due in 20 years from the date thereof, at the option of the plaintiff county; the said bonds being executed in all respects as required by law, and in pursuance of the action of the county board as herein set forth. A copy of said bond, save the signature, is hereto attached, marked ‘Exhibit B,’ and made a part hereof. (9) The plaintiff states that, after the said bonds were authorized in the manner aforesaid, the same were signed by the chairman of the county board of the said county in his official capacity, and attested by the county clerk thereof with his official seal. The same were then presented to the defendant as the auditor of public accounts for the state of Nebraska, together with a certified copy of the proceedings of the county board relative thereto, said bonds being presented to the defendant for registration and certification in the manner provided by law, but, though tendered his fees therefor, the said defendant failed and refused to register the same, and still fails and refuses to do so. The plaintiff therefore prays the court for a writ of mandamus requiring the defendant to appear and show cause why the said bonds should not be registered and certified by him, and that upon the hearing he be required to register and certify to said bonds in his official capacity, as required by law, and conform to such other order as the court may deem just and legal, and to which the plaintiff is entitled in the premises.”
A number of minor objections are made by the defendant to the petition which need not be noticed, but we will proceed at once to consideration of the main question in the case, viz., the authority of the...
