Iowa County v. Green County ( 1845 )

Miller, J.

On examination of this case, it appears that the legislative assembly, by an act to divide the county of Iowa, approved December 8, 1836, directed that townships one, two, three and four, north of ranges six, seven, eight and nine, east of the fourth principal meridian, should be and the same were thereby constituted a separate county, to be called Oreen, and the seat of justice is hereby established at New Mexico, in said county. By an act to organize the county of Oreen, approved January 15,1838, it is provided, “ that the inhabitants of the county of Oreen are hereby required to pay to the county of Iowa, according to the number of inhabitants, their equal proportion of the debts remaining unpaid by the county of Iowa;” and directs, “that the county treasurer of the county of Oreen shall audit and pay over to the sheriff of the county of Iowa such sums as may become due to the county of Iowa, under the pro visions of this act, out of the first money that may come into the treasury of the said county of Oreen ; and the said sheriff is hereby required to pay the same into the treasury of the county of Iowa, for the use of said county.”

The declaration in this case is in assumpsit, for the proportion of the then debt of the county of Iowa, without averring that the sum had been first audited as directed in the aforesaid act. To this declaration the defendant demurred, and the court sustained the demurrer. This judgment of the district court is the only error assigned.

The first mentioned act merely created the county of Oreen, and left the inhabitants thereof to continue attached to Iowa county for all judicial or municipal purposes. The second act organized the county, and permitted the inhabitants thereof to have their own courts and municipal regulations; but a debt having been created* partly for the beneft of the inhabitants of Oreen county, the legislature properly required, as a condition of such separate organization, that they should pay their proportion of such debt; and prescribed, at the same time, the manner in which the amount thereof should be ascertained. It is necessary to a recovery by the county of Iowa, that the amount due from the county of Oreen should be ascertained in the manner directed by the act. If the treasurer of the county of Oreen refuses to discharge his duty under the act, he can be proceeded against by a mandamus.

The judgment of the district court is affirmed, with costs.