67 Neb. 175 | Neb. | 1903
The relator in Ms petition prays that a peremptory writ of mandamus be issued directed to the respondent, as auditor of the state, requiring him to register a certain bond alleged to he held and owned by him, which was issued by Douglas county as one of a series of refunding-bonds, to take up other bonds of the county then outstanding. A demurrer is interposed by the attorney general on the ground that the petition does not state facts sufficient to warrant the granting of the relief prayed for, and also because it is shown on the face of the petition that the bond which it is sought to require the auditor to register ivas issued under an act of the legislature which is void, as declared by the previous decisions of this court.
From what is hereinafter said, we must not be understood as in any way intimating that the bond which it is sought to have the state auditor register or any of the series of the issue of which it is one, are invalid or were issued without authority of law. The case is discussed solely in its aspect in relation to the legal duty or the lack thereof, of the state auditor to register the bond in his office and certify thereon that it had been issued in compliance with, and in conformity to law. By section 12 of chapter 9, Compiled Statutes, 1901,
It is contended, however, by counsel for relator, and we are disposed to agree therewith, that the act of 1883, heretofore referred to,, which related to the authority of counties to refund outstanding bonds at a low rate of interest, was sufficient authority for the action taken by the officers of Douglas county in refunding the bonds described in the petition, and that even though the county commissioners ostensibly acted in pursuance of the authority attempted to be given by the act of 1885, yet such action was valid, if in fact there existed at the time a law authorizing that which was actually done. Without, however, determining that question, which is not properly before us, we undertake only a consideration of the duty of the auditor under the facts alleged in the petition, and for that purpose assume that the general legislation on the subject of refunding-bonds contained in the act of 1883 authorized the refunding of the outstanding bonded indebtedness mentioned. It should here be said that it is evidently the intention of section 12, chapter 9, supra, that the auditor shall be fur-rushed with data sufficient to advise him that county bonds have been issued or refunded in accordance with the provisions of law before he can rightfully be asked to certify, as therein contemplated, to the legality of the issue. This information is usually contained in a document properly certified by the county authorities which is frequently called a history of the bonds issued, containing all the necessary information showing compliance with and conformity to the essential requirements of the statute in relation to the issuance of such bond or bonds. Without such information has been produced and filed with the auditor, he can not, in justice, be asked to register bonds issued by a county, and certify thereon the regularity and legality
The demurrer is sustained.
Judgment accordingly.
Cobbey’s Annotated Statutes, sec. 10757.
Cobbey’s Annotated Statutes, sec. 30783.