State ex rel. Webster v. Board of Com'rs of Lancaster County

• Decision Date: 01 December 1886
• Citation: 30 N.W. 538,20 Neb. 419
• Parties: STATE OF NEBRASKA, EX REL. J. R. WEBSTER, v. BOARD OF COUNTY COMMISSIONERS OF LANCASTER COUNTY
• Court: Nebraska Supreme Court

30 N.W. 538

20 Neb. 419

STATE OF NEBRASKA, EX REL. J. R. WEBSTER, v. BOARD OF COUNTY COMMISSIONERS OF LANCASTER COUNTY

Supreme Court of Nebraska

December 1, 1886

ORIGINAL application for mandamus.

Writ denied.

J. R Webster, relator, pro se.

W. J Lamb, for respondents.

Mason & Whedon and D. G. Courtnay, for intervening parties.

MAXWELL CH. J. REESE and COBB, JJ., dissenting in part.

OPINION

MAXWELL, CH. J.

This is an original action to compel the defendants to to pass upon a claim of relator filed with said board for money alleged to have been expended, and for certain labor alleged to have been performed by him in the refunding of the bonds of Lancaster county. The cause was referred to Hon. W. H. Munger to take testimony and find the facts, and he has made a report, as follows:

"In pursuance of an order of this court, appointing the undersigned sole referee to find and report the facts at issue in this case, I took the oath required by law, and fixed the 23d day of March, 1886, at the office of the county clerk of said county, as the time and place for hearing, and notified the parties thereof.

"At the time and place above stated, I proceeded to the trial of the matters above referred to me, the relator appearing in person, and the respondents by Walter J. Lamb, their attorney, and the intervenors, by O. P. Mason and D. G Courtnay, their attorneys, and after hearing the evidence offered by the parties and the arguments of their attorneys, I find the following facts:

"1st. That at the several dates hereinafter mentioned, and for several years prior thereto, the relator was a practicing attorney in the city of Lincoln in said state.

"2d. That on the 1st day of May, 1871, the said county of Lancaster issued to the Midland Pacific Railway Company three hundred bonds with interest coupons attached, each bond for the sum of five hundred dollars, to aid in the construction of the railway of said company from Nebraska City, in the county of Otoe, to J street, in Lincoln, in Lancaster county, Nebraska.

"3d. That on the 1st day of January, 1873, the said county of Lancaster issued to the Midland Railway Company two hundred bonds with interest coupons attached, each bond for the sum of five hundred dollars, to aid in the construction and completion of the railway of said company from the city of Lincoln, in the county of Lancaster, to the Union Pacific Railroad, in said state.

"4th. That each and all of said bonds bore interest at the rate of ten per cent per annum, payable annually.

"5th. That all of said bonds were issued in pursuance of propositions adopted by the electors of said county, pursuant to the several acts of the legislature of the state of Nebraska in such cases made and provided.

"6th. The proposition so adopted by the electors of said county under which the first series of said bonds were issued, provided that said bonds should be payable 'on or before the expiration of twenty-five years from the 1st day of May, 1871.'

"The proposition so adopted by the electors of said county under which the second series of said bonds were issued, provided that said bonds should be payable 'on or before the expiration of thirty years from the date thereof.'

"7th. The first series of said bonds contained a recital that the same were payable 'on or before the 1st day of May, 1896.'

"The second series of said bonds contained a recital that the same were payable 'on or before the first day of January, 1903.'

"8th. A copy of said propositions so adopted by the electors of said county were duly spread upon the commissioners' records of said county.

"9th. No copy of the bonds of either series was preserved among the records of the commissioners' or county clerk's office.

"10th. A copy of the first series of said bonds was recorded in the office of the auditor of state of the state of Nebraska, but no such copy was recorded of the second series of said bonds.

"11th. That the bond register of said county showed that the first series of said bonds matured May 1st, 1896, and that the second series of said bonds matured January 1st, 1903, but did not show that the same were payable 'on or before' said dates.

"12th. The interest on both series of said bonds had been paid down to and including the first day of January, 1884, the principal being outstanding and unpaid.

"13th. On the 11th day of January, 1884, the relator addressed the board of county commissioners of said county the following letter:

"'JANUARY 11th, 1884.

"'To the Board of County Commissioners, Lancaster County, Nebraska:

"'GENTLEMEN--I have devised a plan by which I can obtain a surrender of some portion of the outstanding county bonds not due, at par, and fund the same into a lower interest bond, without bad faith or repudiation. Some of the bonds I can force in without expense to the county, or any weakening of its good credit and good name.

"'I propose to do so for one-sixth part of the sum saved. I desire this may be kept confidential until you may determine what you will answer, and until after you have conferred and advised with me on the matter.

"'Respectfully,

"'J. R. WEBSTER.'

"14th. Negotiations were thereafter had between relator and the board of county commissioners of said county until the 3d day of March, 1884, when a contract was entered into between relator and said board of county commissioners, which contract was spread upon the commissioners' record of said county, and contained, among other recitals, the following:

"'Whereas certain outstanding bonds of Lancaster county, Nebraska, hereinafter mentioned, were voted to be issued, and were issued, payable on or before their dates of maturity; and whereas J. R. Webster desires authority to undertake, on behalf of the county, to recall and redeem such bonds, without expense or hazards of cost to the county, and agrees to be at the expense and trouble to discover the whereabouts of the holders thereof, and notify them, the said bonds are called in by said county, and are now payable. Now, therefore, be it

"'Resolved, By the board of county commissioners, that J. R. Webster be and he is hereby authorized, for the purpose and upon the conditions aforesaid, to act as agent of the county of Lancaster in the premises.

"'2. Resolved further, That the issue of bonds dated May 1st, 1871, in the sum of $ 150,000, to the Midland Pacific R. R. Company, also the issue of bonds dated January 1st, 1873, in the sum of $ 100,000, to the Midland Pacific R. R. Company, with accrued interest on each of said bonds to May 1st, 1884, be and the same are declared due and payable at the county treasury May 1st, 1884, and after May 1st, 1884, interest on said bonds and each and every one of them shall cease.

"'4. Resolved, That for the purpose of raising money with which to redeem said bonds so called, there be executed and negotiated six per cent interest bonds; said bonds to be negotiated, but not delivered or issued, until old bonds in like amount are surrendered to county treasurer; none of said bonds to be negotiated or sold at less than their par value. And for his compensation for services in and about this business said Webster shall and is hereby allowed the premium which said bonds on negotiation may bring, without other claim than such premium for any service rendered, for any expense incurred, or for any disbursement of moneys required to be made in any way connected with or arising out of the matter of calling in said outstanding indebtedness or bonds, or of the funding of the above, these series of bonds, or the negotiation or sale of the same.

"'The authority of said Webster to terminate one year from this date; and the said J. R. Webster accepts such employment on the above terms, and binds himself to the diligent and faithful performance of said service, and now agrees to hold the county harmless for all costs and expenses, from litigation or otherwise, that may or can in any way arise out of the said matter.'

"15th. That prior to the time relator addressed his letter of January 11th, 1884, to the said board of county commissioners, it was not known by said commissioners that said bonds were made payable 'on or before' the date of maturity; but after the receipt of said letter, and before said contract was entered into, such investigation was made as resulted in their learning the form of the first series of said bonds, and that the same were made payable 'on or before' the date of maturity; but said commissioners did not know the form of the second series of said bonds, or whether they were optional, until some time after the execution of said contract (although it is recited in the contract that they were all payable 'on or before').

"16th. That prior to the execution of said contract, relator solicited various citizens and tax-payers of said county to advise the said board of commissioners as to the propriety of making a contract with said Webster for the purpose of funding said bonds. That several of such persons wrote letters to said commissioners stating, in substance that in their opinion it would be for the best interest of the county to fund such bonded indebtedness, and in their opinion relator's proposition was a fair and reasonable one. That some of said letters were written under the impression and belief on the part of the writers that said bonds were voted optional but issued absolute in reference to time of payment. But relator did not state to any of the persons who wrote such letters that the bonds were issued absolute, and relator did not know whether the second series were issued absolute or conditional until some time after the execution of said contract; but he did know that the first series was issued conditional before the...