The Holt County sentinel., 1896-12-04

copied. This is in substance all the EVIL
dence introduced at the trial; and upon
It the trial court found the issues for
the defendaat and rendered judgment
refusing the peremptory writ and for
costs, to reverse which relator proee-
cutes this his appeal.
l. The defendants first contention is
that as the original petition filed IN the
county csuaty court for the proposed
improvement was not signed by a ma
jority in interest OF the land owners
affected was Insufficient, and that all
subsequent proceedings hels: under it
were void, and that as the taxes To lie
levied to pay the warrant issued in part
for said improvements can be defeated
by the land OWNER, fer that reason man.
damus against the county court for the
levy would b. Il vain and useless thing
and should not go in this case.
The county court found. as fact, &C.
cortling to the disclosure of the record.
evidence offered in this cuse that a ma
jority of the land owners affected wholly
or iM part by the proposed improvement
had signed the petition therefor; It also
found that due notice OF the proceedings
had been give. The evidence shows
also that the county court organized as
court of appeals and gave due notice
that it would hear appeals from the as
sessmente made by the commissioners,
aud that none of the properly owners
appeared; that this warrant, held by
the relator, was issued after the COM
pletion of the work and upon the rec
Ommendation of the commissioners.
The records offered in this case show a
substantial compliance with the statu.
tory requirements in such case proyid-
ed. aud shows that the relator is en-
titled to the payment Of this warrant,
which is a judicial ascertainment and
written acknowledgment Of indebted
ress by the county, and in fact its prom
issory note.
What discrepancy might appear be
tween the number Of petitiOning land
owners at the time of tine filing Of the
original petition which the county court
and the number appearing on the
schedule of land owners filed by the
commissioners six months thereafter
under:the order OF the court cannot be
considered to affect or impair the find
ing made 10y the court that majority
i6 interest of the land owners did sign
the petition, as same was presented to
it in the first instance. The county
court was the proper and only tribunal
to ascertain and pass upon the sufiicien
cy and legality of the various steps, and
the facts existing to authOrZs the max
ing of such improvements and to pro-
vide the means for the payment Of the
same. While jurisdiction of the sub
ject matter on pant Of the county court
was made to depend on the petition be-
ing signed by a majority Of the owners
to be affected by the improvements,
still that body alone must determine
whether the requisite majority have
signed to authorize it's assertion Of jurIs
diction. and when it has SO determined
It's judgment is conclusive (unless ap-
peaisd from) and cannot he collateraliy
assaiied, either by an examination and
comparison of 1t with other papsre af-
terward filed with the court under its
order in furtherapce OF the improve
ment scheme, or by evidence alIunde
the record.
The contract for the improvement
petitioned for had been made, the work
done under 1t had been ratified, and the
warrant issued to the contractor in part
payment for same by the body having
charge Of all the facts necessary to
justify its action IN that behalf, il is too
late now to show that one or more facts
recited in It's record were not as recited.
and particularly should that be so, when
as 10 this case, the relator is the holder
for value Of the warrant by assignment,
fair upon its face. with no want OF juris
dictlonal fact appearing in the record
made by the court to create the least
suspicion that it had not been issued
pursuant to legal authority.
3 Defendants next contention is that
as it was shown by the evidence that
many OF the owners Of lands reported
benefited by the construction of the
drain ditch petitioned for have paid all
the tax due from them, and others have
failed and refused to pay said tax. w:il-
still others lands have been sold under
execution upon tax Judgments Tor said
tax and the taxes realized from such
sales, that all the lands cannot now be
retaxed under such conditions, and that
the court has no power to make any
further levy. This, We think, /, with
out merit under the facts OF this case
While the courts may refuse the relief
asked by mandamus IN its discretion, in
may instances where an undnubted
lcSuI IiSut cAtstes
that discretion against Il petition asking
an order for the levy of aa additional
tax when a previous Tax had been made
sufficiently large TO cover the debt
sought to be enforced but not yet col
lected, or the remedies afforded by law
against the delinquent tax PAYERS and
Al \
to avoid an unnecessary and unfair bur
den upon the prompt tax payer, it could
not properly be refused here. as all the
remedies against the non tax payer
have been abandoned by the county
authorities. and all right Of action on
HOW'S This!
We offer One Hundred Dollars Re-