State ex rel. Chandler v. Board of County Commissioners

| Neb. | Jan 15, 1880

Lake, J.

In the consideration of this case the first inquiry naturally suggested is'as to the effect of the judgment on which the application for the ‘writ of mandamus is based. Unless this judgment be effective as such against Eremont precinct, and conclusive of the rights of the tax payors thereof respecting the bonds in question, we suppose there is no foundation for the proposed tax, and that the relief sought must be denied.

The judgment in question is nominally against the board of county commissioners of Dodge county, but contains a provision for its payment by means of a tax to be levied upon the taxable property of Eremont precinct, which is one of the political subdivisions of said county. The basis of this judgment was the accrued interest on certain internal improvement bonds, issued, it is said, pursuant to a vote of the electors of said precinct. With due respect to the court rendering it we must say that, after a careful examination of the subject, and in view of what that political subdivision of a county, denominated a precinct, really is, we are unable to discover any ground on which this judgment can possibly stand. We presume that no one who is at all conversant with the legislation of this state respecting them would for a moment contend that precincts can either plead or be impleaded in actions, or that they are capable of imposing upon themselves any obligation or liability whatever, except in pursuance of express legislative authority.

A glance'at our statutes on the subject will show that with us precincts are just what and no more than the word, as ordinarily understood, imports— viz.: territorial divisions or districts created for certain political and administrative purposes, but without even the semblance of corporate character. Probably the first provision concerning them is found in the “ Act to provide for the organization of new counties,” etc., the third section of which declares that the county commissioners “ shall proceed to divide such county into suitable and convenient precincts,” and fix the time “ for holding the first election of precinct and county officers.” [Gen Stat., 228.] But the only “ precinct ” officers to be elected — and indeed the only ones known to our laws — are justices of the peace, constables, assessors, and judges and clerks of election, whose powers and duties respectively are only those usually conferred upon such officers. Neither of them is empowered to act for or represent the precinct in any matter whatever. Erom this brief statement, which, with the single exception hereafter to be mentioned, covers all we have to distinguish them as separate political entities, it will be seen that precincts are nothing more than mere territorial divisions of the people, made solely for convenience and efficiency in matters of state government. And it will be seen, further, that as such, a precinct has not been given the power'to enter into contracts either directly or indirectly, nor to assume obligations which a court might be called upon to enforce. The failure of the legislature to bestow upon precincts the capacity of suing and being sued is doubtless due to the fact of their entire inability either to assume obligations or acquire rights distinct from those of the whole body of the people of the county, of which they are a part.

The exceptional matter above alluded to is the authority given to precincts to aid in the construction of works of internal improvement. The manner in which this may be done is by the issue of interest-bearing bonds, first authorized by a vote of the qualified voters of the proper precinct, to be paid by means of a special tax levied and collected on the taxable property therein, as provided in-chapter 35 General Statutes, 448. "When such bonds are issued conformably to the requirements of this chapter the mode of their payment is simple and plainly pointed out. To that end no judgment at law on the bonds, or on the interest coupons as they fall due, is contemplated, or at all necessary, for it is made the duty of the commissioners of the proper county — the one in which the precinct voting the bonds is — to levy and cause to be “ collected and paid to the holders of such bonds a special tax on all the taxable property” within the precinct sufficient to pay the interest as it becomes due, and finally the bonds themselves at their maturity. In ease of a failure or refusal of the commissioners to perform this duty it is provided that they may be compelled by mandamus to do so; and this is the appropriate and, we think, only remedy.

A judgment is said to be “ the final determination of the rights of parties in an action.” But it may well be asked whose rights were finally determined by the judgment rendered upon these coupons? The action was against the board of county commissioners, but they had no rights to be determined, nor wore they in the least interested therein. The only parties at all interested in any question that could possibly arise upon these coupons were the holders thereof on the one hand and the tax-payers of Fremont precinct on the other, of whom the court had jurisdiction only of the former. The tax-payers were not before the court. They were not heard, and consequently their rights are still undetermined. If they had a valid defense to these bonds they have it still, notwithstanding this judgment, which, as to persons of whom the court had not jurisdiction, is a mere nullity. Such being our views concerning the judgment in question, the writ must be denied.

Writ denied.