City of Tecumseh v. Phillips

| Neb. | Jan 15, 1877

Lake, Oh. J.

This is a petition in error from Johnson county.

The questions presented arise upon a demurrer to the petition, which being overruled, a judgment was given against the defendants for the amount claimed by the plaintiff. The action was brought by the plaintiff, Phillips, as treasurer of Johnson county, to recover a smn of money alleged to have been received by the defendants below, from several persons, from time to time, for licences to sell intoxicating liquors in the town, and city of Tecumseh.

It is contended by the plaintiff in error, that these demurrers should have been sustained, for several reasons, which we will notice in the order in which they were presented in the argument before us.

I. That the county treasurer is not authorized to sue for these moneys, for the reason that: “The statutes of Nebraska nowhere cloth the county treasurer, as such, with power to sue and be sued.”

Ve think there is ample authority to be found in the statutes for the treasurer to maintain this action. By section 72 of the general school law, his duty in respect to this class of funds is very clearly set forth. It is provided that: “The county treasurer shall collect, or cause to be collected, the fines, and all moneys for school purposes in his county, and take all proper measures to secure to each district its full amount of school funds,” etc. Now, although he is not, in specific terms, directed to institute suits to recover these moneys when not paid over to him voluntarily, yet, inasmuch as no other means are provided, his duty to do so is very clearly implied. The duty of collection being enjoined upon him, and no particular mode of doing so having been pointed out, it must have been the intention of the legislature that he should employ the ordinary means of enforcing payment where money is wrongfully withheld by one person from another.

In respect to the ordinary taxes levied for school purposes, a specific mode of collection is provided, which must, of course, be pursued in enforcing their payment. But this is not the case with respect to funds arising from fines, forfeited recognizances, and licenses. These are collected, in the first place, by various officers, whose duty it is to hand them over at once to the county treasurer, to be credited by him to the proper fund.

Suppose, however, that these officers refuse obedience to the law in this regal’d, and retain the money, what is to be done? Is there no means by which they may be compelled to disgorge? Is the county treasurer, while directed in positive language to collect these funds, powerless to do so, simply because no specific mode is pointed out? We think not. The authority to make the collection being expressly given, in the absence of any specific direction, it will he presumed that the legislature intended it should be done by a resort to the ordinary means provided for enforcing the payment of debts.

The moneys in controversy belonged to the county school fund, and it was the duty of the defendant in error, to enforce their payment promptly. If to do so, it became necessary for him to resort to an ordinary civil action, his right, nay even his duty, to do so is very clearly implied.

II. But, it is contended that the city of Teeumseh having appropriated these moneys to its own use, they fall within the operation of section three of the act of the legislature, amendatory of the act to incorporate cities of the second class, approved February 25th, 1875, and that, therefore, the treasurer is not entitled to recover, in this particular case, even if we should hold that a county treasurer is authorized to receive this class of moneys, where no such appropriation has been made.

Section three of this act provides: “That in all cases in which cities of the second class, have collected and expended for the use and benefit of such cities, either in works of internal improvement, or otherwise, moneys collected from licenses for the sale of intoxicating liquors, such expenditures are hereby declared to be legal, and the same is hereby ratified and confirmed, and such cities of the second class, are hereby exonerated from any and all liability therefor.”

It will be noticed that the title to this act purports to have two objects in view: first, to amend the general incorporation law for cities of the second class; and second, to legalize certain taxes. Rut we fail to discover wherein it is, in any particular, amendatory of the general act relating to cities of the second class. The first section is devoted entirely to the legalization of certain taxes, supposed to have been illegally levied. The second section relates to the legalization of all bonds issued by any city of the second class, etc., and the third section is devoted entirely to the exemption of any such city from liability for license moneys illegally withheld from the school fund, “and expended for the use and benefit of such cities, either in works of internal improvement or otherwise.”

It would seem to need no argument to show that this third section of the act is not, even by the most liberal construction, included in the title to the act. It is in nowise amendatory of the general incorporation law for cities of the second class, nor does it make any allusion to the legalization of any taxes whatever. And it is very clear to our minds, that the section is obnoxious to that provision of the constitution, in force when the act was passed, which declares that: ’“No bill shall contain more than one subject, which shall be clearly expressed in its title,” etc. See. 19, Art. 2, constitution of 1866. To hold otherwise, would be to ignore entirely the plain requirements of this wholesome provision of the fundamental law.

"We must hold, therefore, that this section of the act of the legislature, upon which the chief reliance was placed to exempt the city from liability, is absolutely void, and furnishes no defense whatever to the'plaintiff’s cause of action. The judgment of the district. court is therefore affirmed.

Judgment affirmed.