24 Neb. 787 | Neb. | 1888
This is an application for mandamus to compel the defendant to draw a warrant on the capítol building fund in favor of the relator. The relator alleges in his petition: “ That by virtue of the provisions of an act of the legislature, entitled ‘An act to provide for the selling of all unsold lots and lands belonging to the state of Nebraska, lying and being in the city of Lincoln, and to provide for the appropriation of funds arising from said sale/ approved March 31, 1887, the board of public lands and buildings of said state, in the year 1887, after advertising as required by said act, and in compliance with law, sold as by said act required the said lots and lands in said act mentioned for the sum of $78,878, of which amount $30,995.33 was paid in cash; $23,928.17 in notes due in one year; and $23,946.52 in notes due in two years. That after said sale, and after the capítol building had been enclosed, the said board of public lands and buildings, after due advertisement for proposals, awarded to affiant the contract for laying out and improving the capítol grounds on behalf of the state,” etc.
The relator then sets out a copy of his contract, and alleges, “ That after entering into said contract, and giving a bond for the faithful performance thereof, affiant entered upon said work, and the same is now in progress; that affiant has received under said contract several estimates for work done and material furnished, which have been presented to the auditor of public accounts, who has drawn his warrants upon the capítol building fund for the several
The fifth section of the act approved March 31, 1887, provides: “Thát the amount derived from the sale of said lots and lands is hereby appropriated out of the capítol fuilding fund to aid in the completion and the furnishing of said capítol building, and in laying out and improving
The evident design of the legislature was, that this fund should be available as soon as a sale of the lands and lots mentioned took place. The fact that a short credit was to be given each purchaser if he so desired, does not nullify the appropriation. The amount of the sales, being $78,870, was appropriated and made available for the purposes for which it was intended. If the whole amount is not in the treasury the statute has provided that the holder of a warrant shall be entitled to interest thereon when it is presented to the treasurer and not paid for want of funds. This being an absolute appropriation of the amount of the sales of the lots and lands referred to, and a large part of this being still unexpended, it follows that the relator is entitled to the writ, which will be issued accordingly.
Writ awarded.