No. 5308 | Neb. | Jun 5, 1894
Robert H. Oakley sued Yalley county in tbe district court thereof to recover from said county the amount called for by three certain warrants drawn by the chairman of the board of county commissioners of said county on the treasurer of said county and drawn on the road fund of' districts Nos. 5, 6, and 8, respectively, bearing dates of June 10, 1875, October 5, 1875, and April 3, 1877, respectively. The petition alleged that each of said warrants, on the date drawn, were presented to the county treasurer of said county and not paid for want of funds, and that since the issuance of said warrants there had been money in the county treasury with which to pay the same; that although Oakley had repeatedly demanded payment thereof, ■ no part of either of said warrants had been paid. To this petition the county interposed an answer alleging, in substance, that no such funds as those on which the warrants were drawn were then in existence, and that there was no money in the hands of the county treasurer on the dates when said warrants were drawn and presented for the payment thereof. To this answer Oakley demurred. The district court overruled the demurrer and dismissed the action, and Oakley brings the case here on error.
Where a plaintiff demurs to an answer of a defendant, the demurrer will be carried back to the petition, and if 'that is found to be defective, the demurrer will be overruled. (Hower v. Aultman, 27 Neb., 251" court="Neb." date_filed="1889-07-11" href="https://app.midpage.ai/document/hower-v-aultman-6646296?utm_source=webapp" opinion_id="6646296">27 Neb., 251.) Does this petition state a cause of action? This question must be answered by a construction of certain sections of chapter 66, revenue law of 1869 (Gen. Stats., 1873, p. 896), and chapter 67 of the law of 1866 (Gen. Stats., 1873, p. 950).
Section 30 of said chapter 66 provided the rate of taxation which county authorities might levy for all purposes. Among these purposes they had authority to levy for roads a poll tax of two dollars, or one day’s work, and a land-
- On June 7, 1867, the legislature passed an act which became part of said chapter 67, and is found in General Statutes, 1873, at page 958. Section 1 of this act provided that one supervisor should be elected annually in each road district. By section 5 of the act it was provided that the county treasurer, upon the order of the county commissioners, should pay the supervisor of each road district the funds in the treasury belonging to said road district, and that the supervisor should expend the money to the best advantage of his road district; and by section 6 of the act it was provided that such supervisor should give a receipt for all road taxes that had been paid in labor. By section 6 of said chapter 67 it was made the duty of each supervisor of roads to notify all able-bodied male residents between certain ages to perform one day’s labor upon the roads in his district in each year. By section 7.
It will thus be seen that whatever money the treasurer of Yalley county had in his hands belonging to the road districts, on which the warrants in suit were drawn, he held in trust for such road districts, and such money was at the disposal of the supervisors of said road districts, and at their disposal only. In other words, the chairman of the board of county commissioners had no authority to draw a warrant against money in the hands of the county treasurer belonging to the various road disti’jcts of the county. He had no more authority to draw a warrant against the money belonging to the road districts of this county than any other citizen of the county had; nor did he have any more authority to draw warrants against the road funds in the county treasurer’s hands to pay the debts
Affirmed.