State ex rel. Wyckoff v. Merrell

• Decision Date: 17 January 1895
• Citation: 61 N.W. 754,43 Neb. 575
• Parties: STATE EX REL. WYCKOFF v. MERRELL ET AL.
• Court: Nebraska Supreme Court

43 Neb. 575

61 N.W. 754

STATE EX REL. WYCKOFF

v.MERRELL ET AL.

Supreme Court of Nebraska.

Jan. 17, 1895.

Syllabus by the Court.

1. All claims against a county must be filed with the county clerk thereof, and presented to the county board, and it alone has power and authority to audit and allow such claims. Section 37, art. 1, c. 18, Comp. St. 1893.

2. This court has no authority, under the constitution and the laws of the state, to compel, by mandamus, the county board of a county to allow a claim against such county, although the court may be of opinion that such claim is a valid obligation against the county, and that it has no defense thereto.

3. A county board, in the adjustment of claims against a county, acts judicially, and this court cannot, by mandamus, control the judicial discretion of such board. State v. Churchill, 37 Neb. 702, 56 N. W. 484, and Heald v. Polk Co., reaffirmed.

4. Mandamus is the last resort of a litigant, and the courts will not employ this remedy when such litigant has a plain and adequate remedy at law, nor, in the absence of such remedy, unless the relator has a clear right to have the officer to whom he wishes the writ directed perform the identical ministerial act prayed for.

Application, upon the relation of Albert E. Wyckoff, for a peremptory writ of mandamus to compel Marion G. Merrell and others, county officers, to issue a warrant on the county treasurer, and levy a special tax to provide for its payment. Writ denied.

Chas. T. Dickinson, for relator.

N. J. Sheckell, for respondents.

RAGAN, C.

From the record before us it appears that the material facts in this case are: On the 2d day of October, 1888, Burt county entered into a written contract with A. E. Wyckoff in and by the terms of which Wyckoff agreed to dig and construct a ditch, previously located by the county, known as the “Peterson Ditch.” The work was to be performed in accordance with certain plans and specifications prepared by an engineer in the employ of the county, and to the satisfaction of such engineer. For this work Wyckoff was to be paid 15 cents per cubic yard, as follows: When one-fourth the work was completed, the county clerk was to draw his warrant on the county treasurer in favor of Wyckoff for 75 per cent. of the amount of the cost of the part of the work completed; and when one-half the work was done, the clerk was to draw another warrant in favor of Wyckoff for 75 per cent. of the cost of the second one-fourth of the ditch; and so on, until the completion of the ditch and its acceptance by the engineer, when the clerk was to draw his warrant in favor of Wyckoff for the cost of the ditch, at 15 cents per cubic yard, less the payments already made. The estimate made by the county's engineer was that to build the ditch according to the plans and specifications would require the removal of 32,464 cubic yards of dirt. Wyckoff, in pursuance of his contract, completed the ditch under the supervision of the engineer of the county, and to his satisfaction; and the engineer accepted the ditch, and made a report of such acceptance to the county authorities of Burt county. But it appears that Wyckoff, in constructing the ditch according to the terms of his contract and the plans and specifications, was required to remove, and did remove, 38,421 cubic yards of dirt. The county authorities have paid Wyckoff the cost of removing 32,464 cubic yards of dirt, but they have refused to pay for the 5,957 cubic yards of dirt removed by Wyckoff, in constructing the ditch, in excess of the number of cubic yards estimated by the engineer. Wyckoff has filed in this court an application for a peremptory writ of mandamus to compel the clerk to draw his warrant on the treasurer in his...