State ex rel. Conger v. Maccuaig

8 Neb. 215 | Neb. | 1879

Lake, J.

This is an application for a peremptory writ of mandamus to compel the defendant to draw a warrant upon the county treasury of Otoe county for the sum of three hundred fifty-five dollars and thirty-five cents in favor of the relator, for the use and benefit of the Otoe county agricultural association, of which he is president, as is provided in section one, chapter two, of the General Statutes — p. 76.

The application is, supported by an affidavit showing the existence of all the facts necessary to bring the relator within the purview of said section, and to entitle him to draw from the county treasury the funds which he seeks.

The important question raised, and the only one that need be noticed, is, whether, under the law as it now stands, money can be drawn from the county treasury on the warrant of the county clerk.

If the section before mentioned were the only statute to be consulted, there could be no doubt as to the authority of the clerk to draw the warrant as demanded, nor of that of the treasurer to pay it. This section, as we now find it, was enacted by way of amendment to a former section on the same subject, and took effect February 15, 1869. But the legislature afterwards, in an act concerning counties and county officers, which took effect September 1, 1873, provided that: “All warrants on the treasurer for money to be paid out of the county treasury ” shall be sigued by the chairman of the hoard of county commissioners, and that they “shall he countersigned by the clerk, and sealed with the county seal.” Sec. 23,, chap. 13, Gen. Stat., 236. By the three next succeeding sections of this chapter the issue of warrants is limited to the amount of tax levied for the current year, and all overdrafts are chargeable, not against the county, but against the commissioners making the same, from whom they “may be collected by civil action.” Between these several sections and the one first above referred to there is a clear and irreconcilable conflict, and under the rule heretofore observed by this court in the construction of statutes, the latest enactment must prevail — it being the latest expression of the legislative will on that subject.

In White v. Blum, 4 Neb., 566, this court, adopting the language of the supreme court of Pennsylvania in the case of Brown v. Commissioners, 21 Penn. St., 37, said: “ "Where the statutes are so flatly repugnant that both cannot be executed, and we are obliged to choose between them, the latter is always deemed a repeal of the earlier. This rule applies with equal force to absolute and irreconcilable conflict between different sections. or parts of the same statute. The last words stand, and the others which cannot stand with them go to the ground.”

"While it is true that the act of 1873, just referred to, does not in express language purport to repeal, or in any respect change the section passed in 1869, yet to the extent that they are irreconcilable it has that effect by implication. The later enactment is a complete law of itself, and provides the mode by which alone money can be drawn from a county treasury. Its effect under the rule of construction just mentioned was to annul all former conflicting statutes relating to that subject. Smails v. White, 4 Neb., 353. Sovereign v. The State, 7 Neb., 409. Such being tbe condition of tbe several statutes bearing upon tbis question, we must hold that a county clerk has no authority to draw warrants upon tbe county treasury, and for tbis reason the writ of mandamus is denied.

■Writ denied.