World Publishing Co. v. Douglas County

Ames, C.

In August, 1904, the county hoard of Douglas county adopted a resolution of which the following is a copy: “Resolved, that the Evening World-Herald, published in Omaha, Douglas county, Nebraska, be, and the same is hereby, designated as the newspaper in which the county treasurer of Douglas county shall cause the delinquent tax list to be published for three successive weeks, commencing the first week in October, 1904, as required by section 196, art. I, ch. 77, Comp. St. 1903, and that the said newspaper is hereby designated as the newspaper in which shall be published the notices provided to be published by sections 7,17,18, 32-34, of art. IX, ch. 77, Comp. St. 1903, and that said newspaper is hereby designated as the official paper for the publication of the official advertising of said county for the year ending September 1, 1905; and be it further resolved that the county clerk is hereby instructed to transmit a certified copy of this resolution to the county treasurer of said county.” The several sections of the statute recited in the resolution enact *850 that it shall be the duty of the county treasurer to publish the notices therein mentioned in a newspaper or newspapers that shall have been designated for such publication by the county board. Our attention has not been called to any statute requiring or empowering a county board to create or appoint, generally, an' “official newspaper” for the county, or a newspaper in which all of the “official advertising” of the county shall be published, but they are required, as has been already stated, to designate newspapers for the publication of particular notices in specified cases. It follows that the last clause of the foregoing resolution is ultra vires and nugatory, unless it was. passed under such circumstances as to constitute in whole or in part an exercise of the general powers of the board to make contracts on behalf of, and to manage and control the business affairs of, the county. But there is no allegation of a breach or threatened breach of this clause of the document, and the question need not, therefore, be further pursued.

In March, 1905,- the personal and political complexion of the board having changed, a resolution was offered, and referred to a committee, Avhich is a copy of the foregoing, except that it omits this third or last clause, and except that in the preceding part thereof the name of the “Omaha Evening Bee” is substituted for that of the “Evening World-Herald.” Thereupon, this suit was begun, seeking perpetually to enjoin the board from adopting this second resolution, or taking any like action, off the ground that such a course Avould inflict upon the plaintiff irreparable injury, for which there would be no adequate remedy at law, through the breach of a contract which, it was alleged, was eAddenced by the first named resolution, and an acceptance of its terms by the plaintiff, as Avas shoAvn by its having published certain of the notices required by the statutes named and referred to in the resolution. The district court sustained a general demurrer to the petition and dismissed the action. The plaintiff appealed.

*851 Whether or not the statutes recited in the first two clauses of the resolution contemplate a contract between a county and a newsj>aper for the publication for a limited and specified time, of notices for which the statute prescribes rates of compensation need not now be decided, because the resolution does not purport to have that effect, and it has not been contended, nor, we presume, will be, that the board could bind the county by a contract in perpetuity. The document contains none of the ordinary forms or phraseology of a contract or of a proposal to enter into one with the plaintiff, which should become obligatory upon acceptance by the latter, or otherwise; but it purports to be, what the statute seems to" contemplate, an exercise of the supervisory power of the board over the official conduct, in this particular, of the county treasurer. It is the county treasurer, not the board, who causes these notices to be published, and who by so doing obligates the county to pay the statutory fees as compensation for the service. State v. Fink, 73 Neb. 360 . All that the board is authorized or required to do is to designate the person or persons with whom the treasurer may laAvfully so deal, and we think it quite clear that they may change such designation from time to time as the interest of the public or their own inclination may dictate.

If the foregoing conclusion is right it disposes of the case, and we recommend that the judgment of the district court be affirmed.

Jackson and Calkins, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.