9 Neb. 458 | Neb. | 1880
This is an original application to this court for a peremptory writ of mandamus to compel the defendant, as treasurer of Adams county, to pay from the funds in his hands, collected for that purpose, the interest alleged to be due on certain precinct bonds, issued, by the commissioners of said county, and now held by the relator.
There is a technical defect in the petition which of itself might be fatal to this application. It is not alleged in terms, nor is it a necessary inference from other facts stated, that the bonds in question were intended “to aid” a work or “works of internal improvement,” the only object for which such bonds could have been legally voted and issued. The allegation of the petition is merely that they were issued “for works of internal improvement in said precinct;” but whether to be devoted to the purchase on behalf of the precinct of works of this 'character already built, for which there was no authority, or to aid in
It is not sufficient, in a petition for the kind of judgment here sought, and which can be given, if at all, only by the plaintiff showing himself very clearly entitled to it, to allege in this general way that the works were “of internal improvement,” but there should be such particular description of the works as to enable the court to see by an inspection of the petition alone that they were really of that character.
But, in addition to this, which may be regarded as a defect merely in the statement of existing facts and curable by amendment, there is another objection which seems to go to the very foundation of the relator’s right for any relief whatever as against this defendant.
Admitting to the fullest extent the justness of the relator’s claim to the money in question, and his right to have it applied in satisfaction of his demand, still there was an important step to be taken, and which he failed to take, before he could legally call upon the treasurer for payment.
"When these bonds were issued there was no special provision of statute governing alone the creation and
- As to the several duties of the county commissioners respecting them, the law makes no distinction whatever between precinct and county bonds. They must issue both, and when issued it is their duty to keep a record of the kinds and amounts, as well as the times and places of payment,, and make provisions therefor, as the statute directs. In the case of precinct bonds the means of payment must he raised by a tax levied by the commissioners “ upon the property within the bounds of such precinct,” which must he collected in the same manner as is the ordinary county revenue, and through the agency of the county treasurer, whose only duty in connection with the fund arising therefrom, when collected, is to hold it subject to the order of the county commissioners directing its application to the object for which it was intended.
As before stated, the management of this sort of precinct indebtedness is made to conform to that of counties of like character. The sole distinction is that it concerns a distinct portion only instead of the whole body of the county. The money with which -to meet the obligations of a precinct is raised and paid out with the same formality, and through precisely the same agencies, as are the ordinary county funds, and, except where there is some special provision of statute
'Writ denied.