106 Neb. 484 | Neb. | 1921
This is a taxpayer’s appeal from the allowance by the county commissioners of Saunders county, August 22, 1919, of certain claims of the plaintiff for the construction and repair of bridges and culverts for the said county during the year 1918, in the sum of $51,791.03, composed of the following items: $23,331.82 for culvert work, $25,499.06 for bridge construction and repair, and $2,960.75 interest thereon; John O. Schmidt, taxpayer, appealed from said allowance to the district court, where the same was confirmed, and now brings the matter here for review.
’The facts are not disputed and are briefly as follows: In response to demands by the county, the plaintiff: made bids for the construction and repair of bridges and culverts during the year beginning December 21, 1917, which were accepted, and on December 28, 1917, separate contracts were entered into covering said work which was to bo accomplished upon written orders by the commissioners; such orders were issued and- the work performed in accordance with the contract, and the principal amount allowed therefor is correct, and the fair and reasonable value of the work and labor performed and materials furnished.
It further appears that the bridge levy for the year 1917 in Saunders county was $48,498.22 and the emergency
The following extracts are taken from a stipulation in the record:
“That on the 22d day of August, 1919, and prior to' the allowance of the claims involved in this action, there were outstanding and unpaid warrants against the general bridge fund of Saunders county, and claims allowed against said general bridge fund upon which warrants had not yet been issued, in an amount in the aggregate exceeding the amount of money on hand in said bridge fund plus 85 per cent, of the. levy on that day made for said fund.
“That on the said 22d day of August, and prior to the allowance of the claims involved in this action, the county board of Saunders county, Nebraska, allowed claims on the county bridge fund in the aggregate amount of $29,360.18, and ordered the county clerk to issue warrants on the said fund for the payment of the same.
“That on August 22d, 1919, there were outstanding unpaid Avai-rants drawn upon the general bridge fund of Saunders county, Nebraska, $30,253.04, and that there was a balance of $322.39 in cash, in said fund.
“That the amount of levy for the year 1919 for the county bridge fund Avas four mills on the dollar valuation, and for the emergency bridge fund one mill on the dollar valuation.
“That on the 22d day of August, 1919, the total amount of cash in the general bridge fund Avas $322.39, and that the amount of cash in the emergency bridge fund on said day Avas the sum of $11,626.36, making a total in said*487 fund in the sum of $11,948.75.”
At the time of the levy, August 22d, 1919, a special levy of five mills was made under the supposed authority of chapter 26, Laws 1919, and warrants to cover the claims in suit drawn upon the funds so attempted to be created; but this court held in the case of Beadle v. Sanders, 104 Neb. 427, that such levy was invalid.
The first question presented for decision involves the construction of section 2971, Rev. St. 1913, reading as follows:
“Bridges shall not be built, the aggregate cost of Avhich shall exceed a sum greater than the amount of money on hand in the bridge fund derived from the levy of previous years, plus 85 per cent, of the levy of the current year, together with the amount of money in the district road fund in the district where such work is to be performed.”
By section 6456 the levy for the county bridge fund is fixed at four mills on the dollar valuation, and the county is elsewhere (section 3001) authorized to levy not to exceed one mill as an emergency bridge fund, and the amounts realized from such levies have been stated above.
Appellant contends that the county has no power to contract for bridges unless there is at the date of the contract sufficient money actually in the funds to pay for the same. It is not contended that the contracts of December 28 are invalid, but the claim is that, before any orders for the construction of bridges or culverts could be issued by the'board under said contracts; there must be money in the funds to cover them, and that, inasmuch as the bridge fund for 1917 had been exhausted and the levy for 1918 not made, the orders- given to- appellee for the construction of bridges and culverts were illegal; the result of such construction of the statute being that from the date of the contract to the date of the levy for 1918 the commissioners had no power to order the construction of any such improvements.
What, then, was the poAver of the county commissioners with reference to the construction and repair of bridges and culverts under the contracts in question? In January, 1918, an annual estimate was made, as required by law, of the expenses of the county for the ensuing year, including $80,000 for bridge fund and $20,000 for emergency bridge fund, which estimate formed the basis for the levy of taxes for that year. It would seem, therefore, that the commissioners were authorized to order bridge and culvert construction up to an amount within the estimate and not in excess of the amount authorized by the statute to be levied; in other words, the levy for that year, when made, having produced for bridge fund only $51,500.51, any orders in excess of that amount would be invalid.
Section 6420 requires the assessment for taxation on April 1; section 6437 provides for the county board of equalization to sit in June; and section 6456 requires that the sitting be continued until the state board of equalization has acted, whose sessions begin the third Monday of July (section 6447), after which “the comity board shall levy the necessary taxes for the current year” (section 6456). It was said in State v. Cornell, 54 Neb. 647: “A consideration of the various provisions of the revenue law relating to the levy, collection, and disbursement of the public moneys of the county, the statute requiring the usual levy of taxes for county purposes to be made annually upon estimates prepared by the county board in January of each year, and forbidding such board from contracting any indebtedness for any object not enumerated in such yearly estimate of expenditures, * * * make it reasonably certain that the lawmakers intended that the .fiscal period of. a county should correspond to the calendar year.” It follow's that “current year” as used in the revenue statute means the fiscal year, and that the same words in section 2971, and “ensuing year” in section 954, all refer to the fiscal or calendar year; and the second syllabus in Clark v. Lancaster County, supra, is disapproved.
A county may make a valid contract to be paid out of available funds in the treasury, or' with the proceeds of taxes that have been or may lawfully be levied during the year the contract is made. Manly Building Co. v. Newton, 114 Ga. 245; Board of Commissioners v. Sauer, 8 Okla. 409.
If the contracts were valid when made and orders for construction given thereunder not in excess of the levy
There is no warrant for the proposition that the allowance of these claims by the county commissioners was irregular and erroneous; the case of State v. Farrington, 80 Neb. 628, does not so hold, but merely, if erroneous, that would not prevent the issuance of a writ to compel levy of a tax to pay the claims. The better reasoning would require the holding that under section 952, subd. 5, Rev. St. 1913, the board may audit and settle claims as soon as the work is completed, though no warrant may issue until after levy; however,..an erroneous judgment-does not require a reversal unless prejudice is shown.
It would seem, therefore, that, regardless of the question of the validity of the orders for bridge and culvert construction, the legislature has declared the bridge orders, at least, valid claims against the county. But appellant contends that the validating act does not cover claims for culvert construction; the language being, “contract for bridge construction or repair.” This brings us to the second question presented, the determination of which involves the construction of the validating act in connection, of course, with the other provisions of the statute of which, as an amendment, it forms a part. In view of our holding that the commissioners were authorized to anticipate the levy for the year 1918 in issuing the orders in question, and that such orders were valid, it will not be necessary to decide this question. In the opinion of the writer, however, the validating act is broad enough to cover both bridge and culvert construction for the reasons: (1) A culvert is easily within Webster’s definition of a bridge: “A structure erected over a depression or an obstacle, as over a river, chasm, roadway, railroad, etc., carrying a roadway for passengers, vehicles,” etc. Of course, a culvert, strictly speak
The- last contention of appellant is that the county is not liable for interest, and in this we think he is right. There is no question but that as a general rule counties are not liable for interest on claims against them. 15 C. J. 662, sec. 375; 1 Dillon, Municipal Corporations (5th ed.) sec. 35 (23); Seton v. Hoyt, 34 Or. 266. And this on the ground that a county is essentially an arm or agency of the state, and only liable for interest when so provided by statute, or by a contract therefor lawfully entered into. Section 5638, Rev. St. 1913 is as follows: “All warrants, issued by the county board shall, upon being presented for payment, if there is not sufficient
Judgment modified so as to allow plaintiff $48,830.88 and interest thereon from July 15, 1920.
Affirmed as modified.