Stewart v. Otoe County

| Neb. | Jul 1, 1873

Lake, J.

The plaintiff brought his- action in the Court below to recover damages claimed by him by reason of the breach of an alleged .contract between him and the county commissioners, whereby they agreed to purchase of him certain premises to be used as a poor-farm.

The petition shows that the commissioners advertised for bids for a poor-farm, in which persons offering the same were requested to state the number of acres, the location, state of improvements, timber and water if any, conditions of sale, and price per acre.

In pursuance of this notice, tbe plaintiff offered his farm, consisting of three hundred and twenty acres, for the price of twelve thousand dollars, of which two thousand dollars were to be paid down, and the remainder in annual payments of two thousand dollars, with interest, until the whole amount should be paid, — the payments to be secured by mortgage upon the premises.

The -bid was accepted by the county commissioners on the fifth day of January; at which time it was also agreed that the annual payments of principal and interest should be made on the first day of March in each year, and that the plaintiff should make his deed, and give possession of the premises, on the first day of March, 1870.

On the first day of March, 1870, the plaintiff executed bis deed, and tendered it, together with the possession of the premises, to the commissioners, and demanded a performance of the contract on their part, which was refused; in consequence of which he was damaged to the amount of several hundred dollars.

To the petition the defendant filed a general demurrer, which was sustained by the District Court; and the only question now presented for our consideration is, Does the petition allege facts sufficient to constitute a course of action ?

First, then, had the county commissioners authority to bind the county of Otoe in a contract of the character of the one set forth ? If they had, the ruling of the District Court upon the demurrer cannot be sustained.

That the county commissioners may purchase a poor-farm for the county is clear; but can they execute notes and mortgage in the name of the county in payment of the purchase-money ? This the contract stipulated should be done; and, because it was not done, this suit was brought.

There is no authority of law for the county commissioners to bind the county in the manner contemplated. They cannot give a promissory note, nor can they mortgage the property of the county. Should they formally do so, their action would be a nullity. In the purchase of land for a poor-farm, the authority of the commissioners of a county is very clearly set forth. The mode of raising the money, and paying it over, are all definitely stated. These statutes set a limit, beyond which they cannot go. They are a guide, not only to the commissioners, but equally so to all persons dealing with them, who must see to it that their contracts are within the boundaries thus described. To maintain an action-against a county upon a contract, it must be shown, that, in respect to both its subject-matter and terms, it is within the statute.

Sect. 17, chap, xl., provides “that the county-commissioners in each county are authorized, whenever they see fit to do so, to establish a poorhouse;” and the next section provides that “they may take to the county, by grant, devise, or purchase, any tract of land not exceeding six hundred and forty acres for the purposes of said poorhouse.”

Now, having authorized the purchase of the land for the purposes of a poorhouse, how may they pay for it ? Sect. 19 of said chapter declares that said commissioners are hereby empowered to receive donations to aid in the establishment of such poorhouse; and also empow- ' ered from time to time, as they shall see fit, to lev}*- and collect a tax, not exceeding one per cent, on the taxable property in the county, and to appropriate the same to the purchase of land, not exceeding the aforesaid six hundred and forty acres; and to erect and furnish buildings suitable for a poorhouse, and to put into operation and to defray the actual expenses of said poorhouse should the labor of the inmates be inadequate thereto. By sect. 23 of the same chapter, the commissioners are authorized, if they deem it to be for the interest of the county, to appropriate out of any other money belonging to the county any sum not exceeding two thousand five hundred dollars, for the purpose of purchasing a farm, and erecting thereon suitable buildings, as contemplated in the sections before referred to.

Here we find the authority, and indeed the only authority, for the purchase, and payment of money for, a “ poor-farm ” by the county commissioners; and here, too, are specially designated the money that may be used for that purpose, together with the mode of raising it. But there is not one word about mortgaging the property of the county to secure the payment of the purchase-money at a given time. The statutes provide the only security that can be given. The public faith is pledged; and a tax, not exceeding one per cent, may be levied upon all the taxable property of the county annually, and, when collected, paid to the person entitled thereto by an order upon the treasurer of the county, payable out of that special fund. If the commissioners could pledge the property of the county by mortgage, it would follow, that, if the debt secured were not paid at its maturity, an action could be at once instituted to foreclose the equity of redemption, subjecting the county necessarily to expensive litigation. This result was never intended by the legislature ; and therefore the authority to pledge the property of the county as security for the payment of its indebtedness has been most wisely withheld from its agents. .'

A mortgage of property is but a conditional sale, and may result in a complete divestment of all the owner’s interest therein: and not only is there no express authority given in our statutes to the county commissioners to mortgage the real property of the county, but their right to sell or transfer it in any manner is most carefully guarded; for in no case can they do so unless first authorized by a majority vote of the electors of the county, as provided in sect. 16, chap, ix., of the Revised Statutes.

We conclude, therefore, that the contract upon which the breach is assigned was not within the statute ; that the county of Otoe was not bound by its terms; and that the refusal of the county commissioners to abide by its provisions furnishes no cause of action to the plaintiff.

The ruling of the District Court upon the demurrer was correct; and its judgment must be affirmed.

Judgment affirmed.