State ex rel. Stephenson v. Cobb
| Decision Date | 04 April 1895 |
| Docket Number | 7226 |
| Citation | 62 N.W. 867,44 Neb. 434 |
| Parties | STATE OF NEBRASKA, EX REL. ELMER B. STEPHENSON, v. M. M. COBB |
| Court | Nebraska Supreme Court |
ERROR from the district court of Lancaster county. Tried below before HALL, J.
AFFIRMED.
N. C Abbott and Abbott, Selleck, & Lane, for plaintiff in error cited: State v. Howe, 28 Neb. 618.
W. H Woodward, contra, cited: City of Tecumseh v. Phillips, 5 Neb. 505; White v. City of Lincoln, 5 Neb. 505; State v. Lancaster County, 6 Neb. 474; Burlington & M. R. R. Co. v. Saunders County, 9 Neb. 507.
This was a proceeding by mandamus in the district court for Lancaster county on the relation of Elmer B. Stephenson, as treasurer of the city of Lincoln, against M. M. Cobb, the respondent, as county treasurer, to require the payment by the latter of certain moneys claimed by the city and belonging to the road fund of said county.
In order to reach an understanding of the question presented by the record it is necessary to examine certain provisions of the statutes which appear to bear directly upon the subject. It is provided by section 76 of the general road law that etc. On April 7, 1891, an act was approved with an emergency clause, entitled "An act to amend section 76 of chapter 78, Compiled Statutes, [the general road law,] and to repeal said original section." (Laws, 1891, p. 314, ch. 43.) The only material amendment of the section mentioned is the addition thereto of the following: "Provided, That the commissioners of counties not under township organization may levy the same rate of tax upon the property within any incorporated city of the metropolitan class and cities of the first class as is levied upon property situated within the several road districts, and all moneys paid into the county treasury in discharge of road tax levied upon property within the corporate limits of any such city shall constitute a part of the general road fund of the county and be subject to the disposal of the county commissioners for the general benefit of the county and city, one-half of which shall go to the county for road purposes and one-half to the council of said cities to be used for road purposes." On the 29th day of March, 1889, there was approved "An act to incorporate cities of the first class, and regulating their duties, powers, government, and remedies," and which will, for convenience, be referred to as the charter of the city of Lincoln, which is, as alleged, a city of the first class within Lancaster county,--a county not under township organization. We find therein no authority for a road tax, but in section 49, after a provision for the levy of taxes for various purposes incident to municipal government, is used the following language, evidently referring to the tax contemplated by the general road law, viz.: "The road taxes collected from property in the city shall be paid to the city treasurer and expended as the council may direct." On the 9th day of April, 1891, an act was approved entitled "An act to amend sections 1, 10, 12, 13, 14, 17, 25, 26, 27, 42, 46, 49, 52, subdivisions 3, 6, and 31 of section 67 and sections 69, 81, 84, 87, and 91 of an act entitled 'An act to incorporate cities of the first class,'" etc., and to repeal said original sections and subdivisions. The amendments therein of section 49 are few and unimportant and in no way relate to the provision under consideration.
Counsel for the relator appear to regard the provisions above quoted as irreconcilable, from which they argue that the re-enactment of section 49 of the...
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