State ex rel. Stull v. Bartley

• Decision Date: 26 June 1894
• Citation: 41 Neb. 277,59 N.W. 907
• Parties: STATE EX REL. STULL ET AL. v. BARTLEY, STATE TREASURER.
• Court: Nebraska Supreme Court

41 Neb. 277

59 N.W. 907

STATE EX REL. STULL ET AL.

v.BARTLEY, STATE TREASURER.

Supreme Court of Nebraska.

June 26, 1894.

Syllabus by the Court.

1. Courts will not hesitate to declare invalid acts of the legislature when found to be in substantial conflict with the fundamental law of the state.

2. The fact that a statute is within the letter of the constitution is not sufficient; it must also be in substantial compliance with the spirit and purpose thereof.

3. An act which violates the true meaning and intent of the constitution, and is an evasion of its general express or plainly-implied purpose, is as clearly void as if in express terms prohibited.

4. The prohibition of section 9 of article 8 of the constitution against the transfer of the permanent school fund to any other fund is an express limitation upon the powers of the legislature; and the restraint thus imposed cannot be disregarded upon the pretense of a supposed necessity resulting from a change of conditions, or in deference to the judgment of the legislature.

5. By the act of 1891, amendatory of section 25, art. 1, c. 80, Comp. St., it was provided that the state treasurer should pay warrants drawn against other funds out of the permanent school fund, and hold them as an investment of the permanent school fund. Held to contemplate a transfer of that fund to other funds, and therefore in conflict with section 9, art. 8, of the constitution.

6. By the provision of the constitution above cited, the state is made the trustee of the permanent school fund.

7. If, as trustee for said fund, the state desires to invest the same in state warrants, it must do so on terms of equality with other investors, and cannot enforce the sale to it by holders of such securities.

8. An act of the legislature for the transfer of the permanent school fund to the general fund of the state is no protection to the treasurer, and the latter is liable to the school fund for all money disbursed in pursuance of such an act.

9. It is the duty of the treasurer, on demand of the holder, to register state warrants in the order presented, when not paid for want of funds.

10. The holder of general fund warrants is not required to receive in payment thereof money known to belong to the permanent school fund, where such payment would amount to a misappropriation of such fund by the treasurer.

Mandamus, on the relation of Stull Bros., against Joseph S. Bartley, state treasurer. Writ allowed.C. C. Flansburg, for relators.

Geo. H. Hastings, Atty. Gen., for respondent.

POST, J.

This is an original application for a writ of mandamus to require the respondent, as state treasurer, to register certain general fund warrants, and is submitted upon the following stipulation: “It is hereby stipulated and agreed by and between the parties hereto for the purpose of this case, and as the facts upon which the same is to be determined, that William Stull and Louis Stull are partners doing business under the firm name of Stull Bros., in the city of Lincoln, Nebraska; that the respondent is the duly elected, qualified, and acting treasurer of the state of Nebraska, and has been such ever since about the 14th day of January, 1893; that, by the proper officers and under the authority of law, there was duly and regularly issued the state warrants in the plaintiffs' petition set forth, payable out of the general fund of the state of Nebraska, delivered to the persons in whose favor they were drawn, as in said petition set forth, and that said persons duly indorsed their names upon the back of said warrants, and sold and delivered them to the said Stull Bros. for the amount of the face of the warrants, and a premium of 1% over and above their face value; that the said Stull Bros., prior to the 14th day of May, 1894, purchased all of the said warrants in the said petition set forth as hereinbefore stipulated, and the same were made payable to the order of said Stull Bros. by indorsement, and thereupon the said Stull Bros., on the said 14th day of May, became and were the legal holders and owners of the said warrants, and still hold and own the same; that on the 14th day of May, aforesaid, the said Stull Bros. duly presented the warrants in their petition described to the respondent, Joseph S. Bartley, at the state treasury in the city of Lincoln; that, at said time, the said Stull Bros. inquired of the said Joseph S. Bartley if there was any money in the general fund upon which said warrants were drawn for the payment of the same, and the said Joseph S. Bartley replied that there was no money in the said general fund for their payment, but at the same time offered to pay to said Stull Bros. the face of said warrants out of the moneys belonging to the permanent school fund of the state of Nebraska. under and by virtue of the authority of a resolution passed by the board of commissioners for the sale, leasing, and general management of all lands and funds set apart for educational purposes and for the investment of school funds; that thereupon the said Stull Bros. declined to accept the face of said warrants, and, upon learning that there was no money in the general fund of said state for the payment of said warrants, demanded that the same be registered for payment; that the said state treasurer (respondent herein, Joseph S. Bartley) refused to register the same, but offered to pay the face of said warrants to the said Stull Bros., and hold the same as an investment for the permanent school fund, under the instructions of the said resolution heretofore referred to; that there was in fact no money in the general fund for the payment of the said warrants, and is not at the present time, and upon the refusal of the said Stull Bros. to accept the amount of the face of said warrants, and deliver them over to the treasurer as an investment of the school fund aforesaid, the said Joseph S. Bartley (treasurer, as aforesaid) refused to register the same; that on the 10th day of May, 1894, at the regular meeting of the board of educational lands and funds, it duly passed and adopted a resolution authorizing the investment of the sum of $200,000 in current unregistered warrants of the state, a copy of which said resolution is hereto attached, marked ‘A’; that said warrants, and all of them, were duly issued in pursuance of an appropriation duly made and secured by the levy of tax for their payment.” The resolution above referred to is in the following language: “Resolved, that the sum of two hundred thousand dollars of the permanent school fund of the state of Nebraska, or as much thereof as may be necessary, be, and hereby is, set apart, from which to pay outstanding warrants drawn upon the general fund, which warrants are registered and bearing...