State, ex rel. Wessel v. Weir
| Decision Date | 22 September 1891 |
| Citation | 49 N.W. 785,33 Neb. 35 |
| Parties | STATE, EX REL. SAMUEL WESSEL, v. D. M. WEIR ET AL |
| Court | Nebraska Supreme Court |
ORIGINAL application for mandamus.
WRIT ALLOWED.
Pound & Burr, for relator, cited: Clark v. Dayton, 6 Neb 192; State v. Cathers, 22 Id., 792.
Robert Ryan, L. O. Hull, and H. T. Conley, contra, cited: U. P R. Co. v. Buffalo Co., 9 Neb. 452; B. & M. R. Co. v Clay Co., 13 Id., 370; Rogers v. Walsh, 12 Id., 30; Blair v. Lantry, 21 Id., 259; 15 Am. & Eng. Ency. Law, 1222.
This is an original application for a writ of mandamus to compel the respondents, D. M. Weir, Chas. U. Grove, and John A. Green, the county commissioners of Sioux county, to include in the estimate of the expenses of said county, certain audited and allowed claims owned by the relator, and to levy and collect a tax to pay the same.
On the 29th day of November, 1889, the board of county commissioners audited and allowed on the road fund, the claim of Murphy & Whiting, for grading a public road, the sum of $ 125, and on the same day the sum of $ 200 was allowed on the bridge fund to said Murphy & Whiting, in full payment for the erection of the Antelope creek bridge.
On December 26, 1889, the following claims were audited and allowed on the general fund:
No. 742, Chas. C. Jameson, for making tax list
$ 216
No. 754, Murphy & Whiting, court house extras
On January 6, 1890, claim No. 765, of C. C. Jameson, for salary and expenses as county clerk, was audited and allowed on the general fund, in the sum of $ 120; and on the 16th day of the same month there was allowed on claim No. 767, to E. D Satterlee, as salary as county attorney and expenses, the sum of $ 122.25. The relator is the owner of all of the above claims, the same having been duly assigned to him.
No appeal has been taken from the allowance of any of said claims, nor is the justness of the same questioned, yet the board of county commissioners refused and neglected to include these claims in their estimate of the expenses of the county.
Counsel for the respondents, in their supplemental brief, argue that Sioux county is not liable for the payment of the relator's claims for the reason that they were allowed after the tax levy for the year 1889 was exhausted, and that said indebtedness was incurred in excess of the levy of taxes for said year.
Section 34 of chapter 18, Compiled Statutes, provides that "It shall be unlawful for the county board of any county in this state to issue any warrants for any amount exceeding the aggregate of eighty-five per cent of the amount levied by tax for the current year, except there be money in the treasury to the credit of the proper fund for the payment of the same; nor shall it be lawful for the county board to issue any certificate of indebtedness in any form in payment of any account or claim, nor make any contract for, or to incur any indebtedness against the county in excess of the tax levied for county expense during the current year; nor shall any expenditure be made or indebtedness be contracted to be paid out of any of the funds of said county in excess of the amount levied for said fund."
The legislature, by the above section, has limited the power of county boards in incurring county indebtedness. They cannot lawfully incur an indebtedness against the county in excess of the tax levied for the current year, nor can they issue warrants on any fund in any one year exceeding in the aggregate eighty-five per cent of the amount levied for said fund for said year, unless there is money in the treasury to the credit of such fund for the payment of the same.
The proofs show that the total levy of taxes for the year 1889 in Sioux county, for county purposes was $ 8,106.78, divided into three funds, as follows: General fund, $ 5,135.56; bridge fund, $ 2,162.34, and road fund, $ 810.88. Warrants to the amount of $ 300 have been drawn against the last named fund. The proof fails to show what amounts have been audited and allowed on the general and bridge funds. There is, however, in the record "Exhibit B," being the certificate of the county clerk, which states "that the general fund was exhausted to the limit as provided by law on the 22d day of July, 1889, by warrant No. 509 issued on that date; that the bridge fund was exhausted to the limit as provided by law on the 28th day of August, 1889, by warrant No. 6 issued on that date." The certificate of the county clerk is merely the legal conclusion of the officer, without stating any fact upon which to base the same. It certainly cannot overthrow the presumption that the county board did its duty in allowing these claims. There is an entire absence of proof to show that, when the indebtedness was contracted, the levies for ...
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