Изображения страниц
PDF
EPUB

BREWER V. OTOE COUNTY.

"The said defendant demurs to said petition of said plaintiff, because it does not state facts sufficient to constitute a cause of action."

This demurrer was overruled by the court, and defendant required to answer. The defence set up by the defendant appears in the opinion of the court. To the answer a demurrer was filed, which was sustained, and judgment given for the plaintiff for the amount claimed, to which defendant excepted. It then brought the case here by petition in error.

8. H. Calhoun and John H. Croxton, for plaintiff in error.

This action is founded on seventeen Otoe county warrants, of different denominations, issued by the commissioners of Otoe county, drawn on the treasurer of said county and ordering him to pay the amounts therein specified, to the payees, out of any money in the county treasury not otherwise appropriated, without naming any time at which the same should be paid, and without naming any rate of interest.

They were, however, presented to the treasurer, and by him indorsed, " presented and not paid for want of funds," By statute, from this indorsement, the warrants would draw ten per cent per annum interest.

These warrants bear date, and were presented as follows.

No. 471, January 5, 1863. Presented January 7, 1863. No. 291, January 7, 1861. Presented Sept. 16, 1861. No. 289, January 7, 1861. Presented Sept.

16, 1861. No. 1105, Feb'y

6, 1860. Presented March 5, 1860. No. 289, Sept.

24, 1858. Presented Febʼy 28, 1859. No. 1043, Feb'y

6, 1860. Presented April 5, 1860 No. 1045, Feb'y

6, 1860. Presented March 5, 1860. No. 1037, Febʼy

6, 1860. Presented April 5, 1860

BREWER v. OTOE COUNTY.

No. 1061, Feb'y 6, 1860. Presented March 5, 1860. No. 437, January 5, 1863. Presented January 7, 1863. No. 453, June 3, 1861. Presented Sept.

16, 1861. No. 955, Dec. 23, 1859. Presented Dec. 28, 1859. No. 157, March 6, 1858. Presented Dec. 3, 1858. No. 1059, Feb'y 6, 1860. Presented April 5, 1860. No. 1044, Feb'y 6, 1860. Presented April

5, 1860. No. 1047, Feb'y 6, 1860. Presented March 5, 1860. No. 1048, Feb'y 6, 1860. Presented March 5, 1860.

,

On the 10th of February, A. D. 1865, an act to provide for the funding of the warrants of Otoe county was approved, by which it was enacted that all Otoe county warrants bearing date prior to January 1, 1864, and outstanding, should be presented and bonded before the first day of December, 1865, or be forever barred, and that such warrants should thereafter be null and void. Said bonds to be payable on or before January 1st, A. D. 1873.

These warrants amounting, as alleged in defendant's petition to $411.40, were not presented and bonded under said funding act. Nor were said warrants ever presented for bonding under said act, and consequently no refusal was ever given by said county to bond them. Therefore, by the terms of said act, said warrants are barred, and defendant had no cause of action.

But plaintiff claims that the legislature of Nebraska did not possess the power and authority to enact such an act, that such act impairs the obligation of the contract made by the county with the payees of said warrants, and, therefore, said act is unconstitutional and void under section 10 article 1 of the Constitution of the United States.

In considering this objection the question naturally occurs, What is the nature and scope of this law ?

Is it a limitation law, which affects only the remedy ?
Or does it go further; and while it authorizes and directs

BREWER v. OTOE COUNTY.

the county to take up the orders or warrants outstanding against it, and to give in the stead thereof its bonds, does it, in any way, affect the essence of the contract, existing between the county and the warrant holder, to the injury of the latter ?

We claim that this act is a limitation law, because in section 5 it provides that payment of all Otoe county warrants or orders which were issued prior to January 1, 1864, and which were not presented and funded, or bonded, in accordance with its provisions prior to the first day of December, 1865, should be forever barred.

This section does just what all limitation acts do. It fixes the time in which payment of the debts in question may be enforced, and beyond which the same shall not be enforced by the courts. In other words it fixes the time in which parties interested may seek and obtain a remedy, and beyond which the remedy will be denied.

But it is claimed that the words “and such warrants shall, after the said first day of December, A. D. 1865, be null and void," in said section 6, render the entire act void. If the section had read that “all the warrants, &c., issued prior to January 1, 1864, and which was not presented, funded or bonded prior to the first day of December, 1865, shall, after the first day of December, A. D. 1865, be null and void," there might be some force in the objection. But such is not the section under consideration.

As has already been shown, this section, down to the word " barred,” is simply a limitation of the time in which the warrant holder could have enforced payment of his warrants, and then it proceeds with the words “and such Warrants shall, after the said first day of December, A. D. 1865, be null and void,” which words, if they mean any. thing in the construing of this statute, means that after said first day of December, 1865, the remedy of the warrant, holder shall be denied, if he seek to enforce payment. To

66

BREWER 0. OTOB COUNTY.

give these words the meaning, force and effect claimed for them by plaintiff, would be to destroy the whole object and purpose of the act, which manifestly was to provide for the payment of the outstanding warrants of the county, by a given time named therein with interest on them.

Indeed, we think no violence would be done to the intention of the legislature if these words were considered to be surplusage.

The legislature may and can regulate and modify the remedy on contracts, may shorten or change the statute of limitation, without impairing the obligation of the contract.–Sturges v. Crowningshield, 4 Wheat. 122; Bronson v. Kinzie, 1. How. 311; McCracken v. Haywood, 2 How. 608 ; State of Alabama v. Dalton, 9 How. 522; Bronson y. Newberry, 2 Doug. (Mich.) 38 ; Rockwell v. Hubbell, 2 Doug. (Mich.) 197; Tarpley v. Hamer, 9 Smedes & Marsh, 310; Bruce v. Skuyler, 4 Gilman, 221; Ruggles v. Keeler, 3 Johns. 263; King v. Dedham, 15 Muss. 447; Holbrook v. Finney, 4 Mass. 566; Call v. Hagger, 8 Mass. 430. To the same point see Smith's Commentaries on Constitutional Law, sec. 254, 265 and authorities cited in ref. “A.”—Story on the Constitution, sec. 1383.

Municipal corporations are subject to the operation of statutes of limitation in the same manner and to the same extent as natural persons.-McKinney v. McKinney, 8 Ohio,

8 594.

The legislature may change (the character of) the security by the substitution of one more beneficial.-Holbrook v. Finney, 4 Mass. 566; Miller v. Miller, 16 Mass. 59; Burghardt v. Turner, 12 Pick. 534.

The State legislature may impair a contract itself, but cannot impair the obligations of the contract.-Ogden v. Saunders, 12 Wheat. 213.

If to this it is objected that the act bars the warrants,

BREWER v. OTOE COUNTY.

we reply that it bars them only is a statute of limitations bars them. And of this above.

I. N. Shambaugh, for defendant in error.

The defendant in error insists that no errors were committed by the court below in this cause, and relies upon the following points and authorities :

I. The plaintiff's amended demurrer to the defendant's answer was properly sustained by the court below. The answer sets up no legal or equitable defence.

II. The act of the legislature of the Territory of Nebraska relied on by the defendant below, was passed in violation of the 10th section of the 1st article of the Constitution of the United States, and is null and void.—1 Kent's Com. 449, 456 and note 1, 457, 461, 462 and note B, 463, 464 ; 6 Cranch, 87; 7 Cranch, 164; 9 Crunch, 43 ; 4 Wheut. 518; 8 Wheat. 1 ; 4 Wheat. 122. Smith on Constitutional Law, 248-259.-18 Curtis, 358; 10 How. 190.

III. The act of the legislature of Nebraska impairs the obligation of the contract. The county warrants were made, by a prior act of the legislature, a legal tender in payment of taxes. The act of February 10, 1865, was passed after the warrants were issued and required the holder to surrender his warrants and receive bonds, payable in eight years, and such bonds are not receivable in payment of taxes.—18 Curtis, 358.

IV. The statute of limitations does not apply to this case. County warrants are not embraced in the provisions of that statute. A county warrant is in the nature of a domnetic judgment, and is not barred by the statute. The statute does not run in favor of a county against a judgment rendered by the board of county commissioners, and a warrant issued by the county in its corporate capacity.

[ocr errors]

LAKE, J.

« ПредыдущаяПродолжить »