Gibson v. Sherman County , 97 Neb. 79 ( 1914 )

Letton, J.,

dissenting.

While the result in this case is probably desirable from a moral and equitable standpoint, it seems to me that the decision is in direct conflict with law. Chapter 55, laws 1905 (Rev. St. 1913, secs. 1101-1106), is entitled “An act to prevent the illegal expenditure of public funds.” Section 3 of the act, as far as material, provides: “No judgment shall hereafter be rendered by any court against any such county in any action brought to recover for any article, public improvement, material, service or labor contracted for or ordered in contravention of any statutory limitation, or when there are or were no funds legally available at the time, with which to pay for the same, or in the absence of a statute expressly authorizing said contract.”

The material was furnished to Sherman county after this act took effect. It seems to me that the district court obeyed this statute, and that this court has no authority to ignore it and virtually direct a verdict for the plaintiff. The special act authorizing the county board to pay the claim could not repeal, amend, or affect the mandatory provisions of this act which apply to the duty of courts, since none of the constitutional provisions with reference. to the repeal or amendment of laws were followed in its enactment.

The act of 1905 was evidently designed to put upon inquiry every person who thereafter dealt with a county board or board of supervisors as to the legality of the proposed contract. It was a direct notification that, unless the contract was authorized, was not in contravention of any statutory limitations, and there were funds legally available at the time, it should be “wholly void as an obligation against said county.” The purpose of the statute is beneficial. In my opinion it should be obeyed by this court, as well as by all other courts in the state. For these reasons, I dissent from the opinion, and think the judgment of the district court should be affirmed.