122 Neb. 167 | Neb. | 1931
''The defendant appeals from a judgment granting a peremptory writ of mandamus against him.
At the regular election in the city of Nebraska City on November 4, 1930, a majority of the electors voted for a proposition submitted, to the effect that the proper officers of the city should make an annual levy on all taxable property in the city sufficient to raise annually the sum of $1,800 for a period of four years, to provide for the salary and expenses of a visiting, community nurse for the city. Comp. St. 1929, sec. 71-2407. Under this statute it is the duty of the city authorities to include the item in the estimate for expenses during the period for which adopted. The tax is to be levied and collected in the same manner as other taxes.
The city authorities failed to include this item, or any amount for this purpose, with the other city expenses required to be included' in their estimate certified to the county clerk and to be levied on the last day of its sitting by the county board of equalization. Comp. St. 1929, sec. 77-1801, amended, Laws 1931, ch. 137, Comp. St. Supp., sec. 77-1801. This last day of sitting in 1931 was on August 5 and the tax levied by the board for Nebraska City purposes of course did not include this item. The
After the county board of equalization adjourned on August 5, 1931, all taxes levied by that board were certified to the county clerk and he proceeded to compute the taxes and extend them on the tax list in suitable books, properly ruled, headed and prepared in the manner provided by law. Section 77-1806, Comp. St. 1929, requires him to complete and deliver the tax list to the county treasurer on or before the 1st, day of November annually. The county clerk completed and delivered the tax list to the county treasurer on September 19, 1931. So that list did not include the levy for the purposes of a visiting nurse for Nebraska City because, as we have recited, the certificate for that purpose was not actually delivered to him until September 28, 1931. ,
Upon receiving the certificate, as to this additional levy, on September 28, 1931, the county clerk refused to place'
The evidence shows that the rewriting or interlining of the tax lists, if done in that way, so as to show this additional levy, would require thousands of entries upon upwards of 200 pages, would take two or more weeks of time with the defendant’s usual office force and one additional-person to be hired for that purpose, with its necessary cost and interference with, the usual work of the clerk’s office; that the treasurer has had 11,000 tax receipts printed with the usual and necessary matter on the front and back; but not devised with a view to this additional tax; that on October 30, 1931, at the time of the trial, 170 tax receipts had already been issued by the county treasurer, receipting “in full for the following taxes for the year 1931,” the printed receipt showing on the back thereof a total levy of 14 mills for Nebraska City and the front thereof showing in its proper column the amount of the tax paid by the city taxpayer. It is fair to assume that since the date of the trial several hundred would have paid their city taxes in the usual course and to avoid in
“To warrant the issue of mandamus against an officer to compel him to act, a duty to do so must be imposed upon him by law; the entire scope of the writ in this respect is to compel the officer to perform his duty and cannot be invoked to enlarge or confer a power upon him to act. The duty sought to be enforced must be a duty which still exists at the time when the application for the writ is made; and it has frequently been asserted that the duty to act must be clear.” 18 R. C. L. 117, sec. 31. See 38 C. J. 582; State v. Colby, 107 Neb. 372; Gutschow v. Ramser, 87 Neb. 591; State v. Weston, 67 Neb. 175; State v. Whipple, 60 Neb. 650; State v. Bartley, 50 Neb. 874; State v. Bowman, 45 Neb. 752; State v. Merrell, 43 Neb. 575; State v. Nelson, 21 Neb. 572; State v. City of Omaha, 14 Neb. 265.
The county clerk’s duties and powers with respect to tax lists are enjoined and granted by the statute. It was his duty, under section 77-1806, to complete and deliver to the treasurer on or before November 1, 1931, the list for taxes levied by the county board of equalization. He did this on September 19, 1931. The evidence shows that sometimes, in previous years, that had been done as early as September 1. After the adjournment of the county board of equalization any taxes otherwise levied must be levied by the clerk. If such taxes as those here involved are certified to him before he “shall have completed the tax list” (section 77-1801) authorized by the board, and before the list shall have been “delivered to the county treasurer” (section 77-1806), it is then his duty to levy such other tax and see that it js “extended upon the tax list” (section 77-1801). We are unable to find that he has any power to make a levy for any additionally certified taxes after he has completed and turned over to the treasurer the main tax list, He derives his authority. and.'.
We do not desire to be understood as deciding that, if the county clerk had conspired with the city officials, or others, to prevent his levy of the city tax by a wilful disregard of the rights of the electors of the city and of his statutory duty and by unreasonably hastening the completion and delivery of the tax lists to the treasurer, we would hold that mandamus would not lie. That is not the situation here. When such a case shall be presented we reserve the right to consider and determine whether such conduct would prevent the statute from barring a further levy of taxes.
If further reason were needed for concluding that the appellant was justified in his refusal to levy the tax, it may be said that, from the record and evidence, it appears that disorder and confusion would arise out of such a levy. This confusion would result not so much from the clerical changes in the tax records as from the rights and liabilities as to the levies of the taxes in the cases of those who have already paid and obtained receipts in full for the 1931 taxes.
“Where the issue of the writ would disturb official action, or create disorder or confusion, it may be denied; and this is so even where the petitioner has a clear legal right for which mandamus would be an appropriate remedy.” 38 C. J. 550. See, also, Merrill on Mandamus, secs. 71, 73; Ferris on Extraordinary Legal Remedies, sec. 202. “Courts, in the exercise of wise judicial discretion, may, in view of the consequences attendant upon the issuance'
For the reasons stated, the judgment of the district court is
Reversed.