Waltham v. Town of Mullally

• Decision Date: 03 October 1889
• Citation: 43 N.W. 252,27 Neb. 483
• Parties: WALTHAM v. TOWN OF MULLALLY.
• Court: Nebraska Supreme Court

27 Neb. 483

43 N.W. 252

WALTHAM

v.TOWN OF MULLALLY.

Supreme Court of Nebraska.

Oct. 3, 1889.

Syllabus by the Court.

1. The several townships of a county, organized under the township system of government, are charged by law with the care, support, and maintenance of paupers residing and legally settled therein respectively.

2. The supervisors of the respective townships are the officers charged by law with the duty of caring for and contracting for their support and maintenance, and, when they so contract, and the contractor earns money under such contract by furnishing such support and maintenance, in good faith, according to the terms of the contract, the township is liable and legally bound therefor; and such liability cannot be avoided by refusing or neglecting to vote and levy the necessary taxes for its payment.Kidd & Porter and F. B. Beall, for plaintiff in error.

Lamb, Ricketts & Wilson, for defendant in error.

COBB, J.

This action is brought on error by the plaintiff below to the judgment of the district court of Harlan county. The plaintiff complained of the town of Mullally, in said county, for services rendered in the care and support of A. E. Davis, a pauper of said township, from November 26, 1883, to August 12, 1887,--193 weeks,--at $9 per week, amounting to the sum of $1,737, which services were rendered at the defendant's instance and request, and for which the defendant promised to pay the plaintiff, on demand, such sum as they were reasonably worth. Such services, the plaintiff alleges, were reasonably worth the sum of nine dollars per week, as stated; and that on March 27, 1888, the plaintiff presented to the supervisor of the defendant her account therefor, duly verified, which was wholly disallowed by the defendant at its regular meeting to consider the same, in April, 1888. The defendant appeared by attorney, and demurred to the plaintiff's petition for the reason that the facts stated are not sufficient to constitute a cause of action, which was sustained by the court, with judgment for defendant's costs, to which the plaintiff excepts, and assigns as error that the court erred in sustaining the demurrer of defendant to the plaintiff's petition.

The law for the government of towns in those counties where the system of township organization has been adopted is far from perfect or comprehensive in its provisions; yet there is probably enough to be found in the statute-book to warrant the holding that upon such towns is imposed the duty of caring for and supporting its local poor. In all states and counties of which I have any knowledge, this duty, as well as the powers necessary to its discharge, is imposed upon the smallest subdivision of rural municipal government. Among the powers invested in the electors of the township by section 13, art. 4, c. 18, Comp. St., is that of directing the raising of money by taxation “for the support of the poor within the town;” but that power is not to be exercised when the county board of the county have established a poor-house under the statute of our state. Section 53 of the same act provides that “the following shall be deemed town charges, to-wit: The compensation of town officers, for services rendered their respective towns; contingent expenses necessarily incurred for the use and benefit of the town; the moneys authorized by the vote of any town-meeting for any town purpose; and every sum directed by law to be raised for town purposes.” Section 54, following, provides that “the moneys necessary to defray the town charges of each town shall be levied on the taxable property in such town, in the manner prescribed by law for raising revenue. The rate of taxes for town purposes shall not exceed for roads two mills on each dollar of the valuation; for bridges, two mills on each dollar of the valuation; for all other purposes, three mills on each dollar of the valuation. And if the electors, at the annual town-meeting, fail to vote a tax to pay the town charges hereinbefore specified, or the town board fail to certify up to the county board the amount of tax voted, if any, by a town-meeting, then the county board shall have power, and it shall be the duty of such county board, to levy upon the taxable property in said town a tax sufficient to pay all such town charges.” Considering these provisions together, it is the duty of each township to vote a tax at each annual town-meeting sufficient to meet such expenses in the support and maintenance of the town poor as may be reasonably anticipated; and if in any case such duty is neglected, then it becomes the duty of the county board to levy upon the taxable property of such township a tax sufficient to pay all of such town charges. It seems to be the contention of the defendant in error that a township may avoid the obligation of supporting its poor by simply refusing to vote a tax for that purpose. I do not agree with that proposition, nor that the power or duty of the town supervisor to bind...