Kemerer v. State ex rel. Garber

| Neb. | Jan 15, 1878

G-antt, Ch. J.

This case is brought here on error from the judgment of the district 'court, allowing a peremptory writ of mandamus against the plaintiffs in error to compel them to issue certain county warrants in favor of defendant, the relator.

It appears from the record that the defendant was county clerk, and that he presented to the board of county commissioners three several bills, amounting in the aggregate to $295.30, for preparing the tax list and duplicate for the year 1876.

On the thirteenth of November, 1876, the board audited and allowed his claims; but on the fifth of April in the following year, the board reconsidered and rescinded the former adjudication of the relator’s claim. It further appears that the assesed value of property ,of the county for the year 1876 was $701,183.80. The errors alleged are substantially, that the court erred in rendering judgment allowing the writ; that the judgment is not sustained by the evidence, and is contrary to law.

It may first be observed that the proceedings of the board, had on the fifth day of April, 1877, reversing and rescinding its former action in regard to the claim of the relator, is a mere nullity, because it has no power to review, vacate, or set aside its former adjudications. State, ex rel. Clark, v. Buffalo County, 6 Neb., 454" court="Neb." date_filed="1877-10-15" href="https://app.midpage.ai/document/state-ex-rel-clark-v-board-of-county-commissioners-6642376?utm_source=webapp" opinion_id="6642376">6 Neb., 454.

But, again, the audit and allowance of the relator’s claim by the board, on the thirteenth of November, 1876, cannot have the effect of an adjudication, and must be treated as simply void; because the board has no judgment or discretion to exercise in the matter.

The fees of the county clerk for preparing the tax list and duplicate are definitely fixed by law, and the board cannot make them any greater or any less; and therefore the duty of the board is merely ministerial, and that is, to issue a warrant to the clerk for the amount so fixed by law for preparing the tax list and duplicate. Section 3, of the act of February 23,1873, provides that: “For preparing tax lists and duplicates in counties where the assessed value of property shall not exceed two million dollars, the clerk shall receive compensation at the rate of one-fowrth of one mill for each dollar of such valuation as shown by such tax list, which shall be pcdd by warrant on the county treasurer.” The tax list when completed is kept in the office, and from the assessed value of property, as footed up in this list, the board, by simple calculation, can easily ascertain the amount of fees the law allows the clerk in the case. This is merely a ministerial act and not judicial. High on Ex. & Leg. Rem., §§ 101 and 105. Shaw v. Howel et al., 18 La. Ann.,195. Apgar v. Trustees, 5 Vroom, 309. In the case at bar, it appears that the assessed value of property of the county was $701,183.80, and therefore the fees of the clerk for preparing the tax list and duplícatelas fixed by law, amount to $175.30. For this amount he is entitled to a warrant; but in his affidavit for the writ he makes no claim for a warrant for this amount.

Now, in an application for the writ, it is not only absolutely necessary to show a prior demand and a refusal (Leonard v. House, 15 Ga., 473" court="Ga." date_filed="1854-07-15" href="https://app.midpage.ai/document/leonard-v-house-5552091?utm_source=webapp" opinion_id="5552091">15 Ga., 473), but it is also essential to set forth facts which clearly impose upon the respondent the duty which it is sought to compel him to perform. People v. Town Board, 14 Mich., 28" court="Mich." date_filed="1865-11-11" href="https://app.midpage.ai/document/people-ex-rel-colby-v-township-board-6633495?utm_source=webapp" opinion_id="6633495">14 Mich., 28. The statute in relation to mandamus provides that “ the writ may be issued to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station,” and that the “writ must state concisely the fact showing the obligation of the defendant to perform the act, and his omission to perform it.”

In this case the writ would compel the respondents to perform an act which is not specially enjoined by Ioajo as a duty to be performed by them, but to perform an act which would be an infringement of the law. This is a fatal objection to the mandamus. Even a failure to allege that there is money not otherwise appropriated by law out of which the money is directed to be paid, is fatal to a mandamus. Redding v. Bell, 4 Cal., 334.

The judgment of the court below must be reversed, and the action must be dismissed without prejudice to the relator’s right to his fees allowed by law.

Judgment accordingly.