DocketNumber: No. 17,740
Citation Numbers: 92 Neb. 736
Judges: Reese, Sedgwick
Filed Date: 1/16/1913
Status: Precedential
Modified Date: 7/20/2022
This is an application for a writ of mandamus to the county treasurer of Otoe county to compel him to pay a warrant for the sum of $6, issued in relator’s favor upon the treasury of the county. The transcript does not show the allowance of an alternative writ, nor that one was served upon the defendant, nor is there a copy of any writ included in the transcript. There appears a memorandum by some one, whether by the clerk or judge does not appear. It is as follows: “Issuance of writ. February 5, 1912, alternative writ issued, directing respondent to comply with the writ, or show cause why he refuses by 2 o’clock P. M. on the 12th day of February, 1912.” This may be a correct history of what was done, but it is certainly no proper part of the court record, nor of a transcript. There being nothing in the record to show that a ivrit was served upon respondent, we may assume that the service was waived.
On the 10th of February, 1912, the respondent filed a a general demurrer “to the affidavit and petition,” the grounds thereof being “that said petition and affidavit
It is alleged in the petition, among other things, that the respondent is the county treasurer of Otoe county, and his duties as to the payment of warrants are set out; that relator is the owner of a certain warrant issued by order of the county commissioners of said county for the sum of $6, payable to his order out of the general fund; that he presented the order to respondent for payment and demanded payment, but that defendant stamped upon the margin or face thereof the words,- “This warrant issued subject to payment of personal taxes,” and refused to pay the same; that at said time there were ample unappropriated funds in the general fund to pay the warrant; that no order had been made by the board of county commissioners deducting any delinquent taxes due and owing from relator, and it was the duty of respondent to pay the warrant. A writ of mandamus compelling payment is prayed for. The affidavit accompanying the petition is substantially in the same form, and need not be noticed. As we have shown above, when dealing with another phase of this case, respondent demurred to the petition. The demurrer was • sustained, and the proceeding dismissed. Relator appeals.
It is said in the argument and brief of respondent that the county commissioners had previously “made a blanket order directing that said Avords be incorporated in all warrants delivered to persons owing the county personal taxes, and that the county treasurer deduct from the amount of said warrant the personal taxes OAved by the party to whom said warrant Avas issued.” But there is
The statute upon this subject is found in Ann. St. 1911, sec. 4466 et seq. In that section it is provided: “The county board of any county, whenever the account or claim of any person against the county is presented ro them for alloAvance, may, in their discretion, procure from the county treasurer a certificate of the amount of delinquent personal taxes assessed against the person in whose favor the account or claim is presented, and may deduct from any amount found due upon such account or claim the amount of such tax, and issue a warrant for the balance remaining.” If this section is mandatory and provides the only procedure by which the delinquent personal taxes can be deducted from an allowed claim, it is pretty clear that the demurrer was not well taken, and should have been overruled. The statute Avas intended as an aid to the collection of delinquent personal taxes. Tim section under consideration presents an easy and con venient method of collection where the county is indebted to a delinquent, A strict construction should not be indulged in when the requirements of the Iuav are sub
The judgment of the district court is reversed and the cause is remanded for further proceedings.
Reversed.