Stenberg v. State ex rel. Keller

• Citation: 67 N.W. 190,48 Neb. 299
• Decision Date: 06 May 1896
• Docket Number: 8281
• Parties: EMERY M. STENBERG ET AL. v. STATE OF NEBRASKA, EX REL. CHARLES B. KELLER ET AL
• Court: Nebraska Supreme Court

67 N.W. 190

48 Neb. 299

EMERY M. STENBERG ET AL. v. STATE OF NEBRASKA, EX REL. CHARLES B. KELLER ET AL

No. 8281

Supreme Court of Nebraska

May 6, 1896

ERROR from the district court of Douglas county. Tried below before DUFFIE, J.

AFFIRMED.

William D. Beckett and Read & Beckett, for plaintiffs in error:

1. The county board as an executive or administrative body had no power to comply with the demand of Keller and Doane for the return of the money paid by them on account of the purchase of the lots in Douglas Addition. (Davey v. Dakota County, 19 Neb. 722; State v. Alexander, 14 Neb. 282; United States v. Stone, 2 Wall. [U. S.] 525; Moore v. Robbins, 96 U.S. 530; Steel v Smelting Co., 106 U.S. 447; United States v Schurz, 102 U.S. 378; Union River Logging R. Co. v. Noble, 147 U.S. 165; Hilliard v. Connelly, 7 Ga. 172; Summer v. Colfax County, 14 Neb. 524; Sioux City & P. R. Co. v. Washington County, 3 Neb. 40; State v. Buffalo County, 6 Neb. 454; Kemerer v. State, 7 Neb. 132.)

2. The county board, as a judicial tribunal, had no jurisdiction to consider the petition of Keller and Doane, or to adjudicate upon the validity of their deed from the county. (Stewart v. Otoe County, 2 Neb. 181; Brown v. Otoe County, 6 Neb. 115; Gaston v. Commissioners, 3 Ind. 497; Board of Commissioners v. Cutler, 7 Ind. 6; Rhode v. Davis, 2 Carter [Ind.], 53; State v. Conner, 5 Black. [Ind.], 325; Furnas v. Nemaha County, 5 Neb. 367; Howard v. Dakota County, 25 Neb. 233; State v. Buffalo County, 6 Neb. 454; Dixon County v. Barnes, 13 Neb. 294; State v. Merrell, 43 Neb. 575; State v. Churchill, 37 Neb. 702; Sioux County v. Jameson, 43 Neb. 265; Heald v. Polk County, 46 Neb. 28; Dodge County v. Gregg, 14 Neb. 305; Streeter v. Rolph, 13 Neb. 388; Chicago, B. & Q. R. Co. v. Skupa, 16 Neb. 346; Republican V. R. Co. v. Fink, 28 Neb. 397; Huddleston v. Johnson, 71 Wis. 336; Fordsen v. Gummer, 37 Minn. 211; Brooks v. Delrymple, 1 Mich. 145.)

3. The board of county commissioners having no jurisdiction to consider the petition of Keller and Doane, the district court acquired none by the appeal. (Brondberg v. Babbott, 14 Neb. 517; Union P. R. Co. v. Ogilvy, 18 Neb. 638; Stringham v. Board of Supervisors, 24 Wis. 594; Keeshan v. State, 46 Neb. 155; Latham v. Edgerton, 9 Cow. [N. Y.], 227; Plunkett v. Evans, 50 N.W. [So. Dak.], 961; Fidelity Trust Co. v. Gill Car Co., 25 F. 737; Plano Mfg. Co. v. Rasey, 69 Wis. 246; Moise v. Powell, 40 Neb. 674; Foster v. Pierce County, 15 Neb. 48; Town of Wayne v. Caldwell, 1 So. Dak. , 483; Fitzgerald v. Beebe, 7 Ark. 305; Johnson v. Parrotte, 46 Neb. 51.)

4. The note and mortgage of Keller and Doane to the county constituted a good off-set against the judgment to that extent, so that it is not the duty of the plaintiff in error to pay said judgment in full.

5. Keller and Doane bought no public grounds of Douglas county. They bought vacant lots, and the deed of the county for such lots vested in them a perfect title. (Dillon, Municipal Corporations, sec. 575; Roberts v. Northern P. R. Co., 158 U.S. 1; Platten v. Board of County Commissioners, 103 Ind. 360.)

Charles B. Keller and George W. Doane, contra.

In reply to the first proposition of plaintiffs in error the following cases were cited: Douglas County v. Keller, 43 Neb. 635; State v. Anderson, 26 Neb. 521; State v. Lancaster County, 6 Neb. 481; State v. Babcock, 17 Neb. 188; State v. Bechel, 22 Neb. 158; State v. Benton, 29 Neb. 460; Zottman v. City of San Francisco, 20 Cal. 102; Mayor of Baltimore v. Porter, 18 Md. 301; Smith v. Stevens, 10 Wall. [U. S.], 326; Still v. Lansingburgh, 16 Barb. [N. Y.], 107; Dill v. Wareham, 7 Met. [Mass.], 438; Hurford v. City of Omaha, 4 Neb. 350; McCracken v. City of San Francisco, 16 Cal. 628; Paul v. City of Kenosha, 22 Wis. 266.

The question of jurisdiction is no longer an open one. (Douglas County v. Keller, 43 Neb. 635; Washington Bridge Co. v. Stewart, 3 How. [U. S.], 413; Skillern v. May, 6 Cranch [U. S.], 267*; Himely v. Rose, 5 Cranch [U. S.], 316*; State v. Waupaca Bank, 20 Wis. 672; Martin v. Hunter, 1 Wheat. [U. S.], 364; Gaines v. Rugg, 148 U.S. 242; Younkin v. Younkin, 44 Neb. 729; Clary v. Hoagland, 6 Cal. 685.)

The claims were properly presented to the board of county commissioners in the first instance, and an appeal from their order of disallowance taken to the district court. (Dixon v. Barnes, 13 Neb. 294; Richardson County v. Hull, 24 Neb. 536; State v. Churchill, 37 Neb. 704; Heald v. Polk County, 46 Neb. 28; Maddox v. Randolph County, 65 Ga. 216; McCann v. Sierra County, 7 Cal. 121; McLendon v. Anson County, 71 N. Car., 38; Marshall v. Baltimore & O. R. Co., 16 How. [U. S.], 325; Clark v. Saline County, 9 Neb. 516.)

Boards of county commissioners are not courts within the purview or within the meaning of that term as used in the constitution, nor is their action judicial within the meaning of that term as therein used. (Eureka Sandstone Co. v. Pierce County, 8 Wash., 237; Kemerer v. State, 7 Neb. 130; State v. Roderick, 25 Neb. 629; State v. Harmon, 31 Ohio St. 257; Gurnee v. Brunswick County, 1 Hugh [U. S. C. C.], 270; Sewing Machine Cases, 18 Wall. [U. S.], 585; Dogge v. State, 21 Neb. 279; People v. Board of Supervisors, 65 N.Y. 225; National Bank of Chemung v. City of Elmira, 53 N.Y. 49; People v. Supervisors of Schenectady, 35 Barb. [N. Y.], 408; Mathews v. Otsego Supervisors, 48 Mich. 589; Rowe v. Bowen, 28 Ill. 117; Betts v. New Hartford, 25 Conn. 185; Black v. Saunders County, 8 Neb. 440; Shurbun v. Hooper, 40 Mich. 503; Commissioners v. Keller, 6 Kan. 510; Flat Swamp Canal Co. v. McAllister, 74 N. Car., 162; Ferry v. King County, 26 P. [Wash.], 537; Granger v. Pulaski County, 26 Ark. 39; Hunsacker v. Borden, 5 Cal. 288; State v. Ormsby County, 7 Nev. 392; Shanklin v. Madison County, 21 Ohio St. 583; People v. Supervisors, 8 Cal. 58; State v. Stout, 7 Neb. 107; Lyell v. St. Clair County, 3 Macl. [U. S. C. C.], 580; Rock Island County v. Steele, 31 Ill. 543; Schuyler County v. Mercer County, 4 Gil. [Ill.], 20; Granger v. Pulaski County, 26 Ark. 40; Ward v. Hartford County, 12 Conn. 404; Anderson v. State, 23 Miss. 459; Maddox v. Randolph County, 65 Ga. 216; McCann v. Sierra County, 7 Cal. 121; McLendon v. Anson County, 71 N. Car., 38; Ex parte Harker, 49 Cal. 465; Aldrich v. Hawkins, 6 Black. [Ind.], 126; State v. Vincent, 46 Neb. 408.)

The title to real estate was not sought to be recovered, and was not drawn in question in the sense referred to in the constitution. (Smith v. Kaiser, 17 Neb. 184; Radley v. O'Leary, 36 Minn. 173; Readle v. Sutton, 43 Md. 64; Nicholson v. Walker, 4 Ill. App., 404; Potts v. Magnes, 17 Colo. 364; Fulton v. Hanlow, 20 Cal. 487; King v. Chase, 15 N.H. 10; Gilbert v. Thompson, 9 Cush. [Mass.], 348; Mushrush v. Devereaux, 20 Neb. 49; Jakenay v. Barrett, 38 Vt. 316; Campbell v. McClure, 45 Neb. 608; Hart v. Hart, 48 Mich. 175; Hungerford v. Redford, 29 Wis. 345; Bridges v. Branam, 33 N.E. [Ind.], 271; Conaway v. Gore, 27 Kan. 126; Benton v. Marshall, 1 S.W. [Ark.], 201; Lehnen v. Dickson, 148 U.S. 71; Quetermous v. Hatfield, 14 S.W. [Ark.], 1096.)

In an argument against the third contention of plaintiffs in error reference was made to the following cases: Groves v. Richmond, 56 Iowa 69; Hughes v. Hardesty, 13 Bush [Ky.], 364; Real v. Hollister, 20 Neb. 112; Davidson v. Cox, 10 Neb. 150; Dale v. Shively, 8 Kan. 276; Richardson v. Dorr, 5 Vt. 9; Thayer v. Clemence, 22 Pick. [Mass.], 493; Pollard v. Dwight, 8 U.S. 429; Randolph County v. Ralls, 18 Ill. 29; Leigh v. Mason, 1 Scam. [Ill.], 249; Vermillion County v. Knight, 1 Scam. [Ill.], 97; Williams v. Blankenship, 12 Ill. 122; Ginn v. Rogers, 4 Gil. [Ill.], 131; Gillenwater v. Mississippi & A. R. Co., 13 Ill. 1; Allen v. Belcher, 3 Gil. [Ill.], 594; Montgomery v. Heilman, 96 Pa. 44; Lee v. Parrett, 25 Minn. 128; Birks v. Houston, 63 Ill. 77.

Citation as to right to set-off: Thrall v. Omaha Hotel Co., 5 Neb. 301.

References in reply to the fifth contention of plaintiffs in error: Chapman v. Douglas County, 107 U.S. 348; Eureka Sandstone Co. v. Pierce County, 8 Wash., 237; Barker v. Davies, 47 Neb. 78.

OPINION

The opinion contains a statement of the case.

NORVAL, J.

This was an application to the district court of Douglas county by the relators for a peremptory mandamus to compel the respondents, the board of county commissioners of said county, to take the necessary steps to cause a warrant to be issued upon the county treasurer in favor of relators, in payment of a judgment recovered in said district court by Charles B. Keller and George W. Doane against Douglas county for the sum of $ 4,832.62, and costs taxed at $ 99.73, which judgment was affirmed by this court. (Douglas County v Keller, 43 Neb. 635, 62 N.W. 60.) A peremptory writ of mandamus was ordered as prayed, and the respondents have brought the record here for review.

There is no controversy as to the facts. The respondents insist that the judgment sought to be enforced by this proceeding was rendered without jurisdiction, and, therefore, is void. Before entering upon the discussion of the questions involved, it will not be inappropriate to briefly state the facts. The county of Douglas, being the owner of 160 acres of land, which had been purchased and was used as a poor farm its board of county commissioners adopted a resolution submitting to the voters of the county, for their adoption or rejection, the proposition to sell a part of the poor farm and with the proceeds build a county hospital. This question was voted upon at the general election held in said county November 2, 1886, and much less than one-half, and but a little over one-third, of the total vote polled in said county at said election was cast in favor of said proposition, although it...