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(SYLLABUS) act of the legislaEven though an be an independent be ture professes to formally purport to and dees not act, if, prior act or acts, yet amend any intent is to, in fact, the legislative and it clearly appears that the act in an existing does, make changes by adding new provisions act or acts therein and changing existing one or the and the changed mingling new with the old on the same subject, of the old, the changed, as to make and the new connected piece of legislation covering the same submust be considerthe latter act ject, ed an amendment of the former act within the constitutional or acts and prohibition. as follows: shall contain than bill more and the shall be subject, same one in the title. And no clearly expressed be amended unless the new law shall act contain the section or sections as amended and the section or sections amended shall be repealed." that House Roll Respondent insists No. 345 (Comp. St. Supp. 1933, sec. independent and is an act in itself, and does not concomplete travene the restrictions of the Constitution. Under the title quoted above this act provides: delinquent property taxes, whether real property or personal, collected by any county, city, school district or other village, any taxing district within the state of Nebraska, after the close of the fiscal year for which such tax may be or have been levied, shall be apmay plied and credited as follows, and shall be used for no other purpose: (a) Such delinquent taxes so collecvillage, school ted by any county, city, district or other taxing district, shall first to the discharge of be applied any unpaid obligation lawfully incurthe fiscal for which red for year such tax was levied. (b) Such delinquent taxes when collected to an amount over and above such as may to discharge the obligarequired tions specified in sub-section (a) hereof, shall be paid into sinking fund to be used for no other purpose than to pay the interest and principal of the bonded indebtedness of such city, village or school county, district. In case any county, city, village school district, have obligations of the character specified sub-section (a) herein, and no bonded indebtedness, then and in that event such delinquent taxes when collected shall be credited and paid into the general fund of such county, city, village, school district or other taxing district notwithstanding any more general law respecting the method and manner of applying the proceeds derived from delinquent property taxes in force in this before Rose, Heard Good, Eberly, Day and Paine, and Landis, District Judge. EBERLY, It will be noted that the "form" This action in mandamus an which this legislation is cast brought in the original jurisdiction of act. But conthat of an independent tribunal. It instituted at the this was look to substance, not to stitutions relation of Henry Beal, as county form. The words of this act standing of Douglas county, its attorney alone would be meaningless. It is only board of county after it is applied to existing statuagainst the county treasurer of Dougprovisions that it evidences any submitted the tory las county, and was on "command." It provides for no agenthe return of the alternative writ, by which cies, machinery, or means respondent thereto, and stipulations of the object sought to be promoted may fact. be secured. When applied to existing The sole object of the action is to laws nothing new, independent, or secure compliance with the following results. In other complementary resolution, duly adopted by the counwords, if the careful student should board on February 13. 1934: take House Roll 345 and with it an"Whereas, the county treasurer of notate his Compiled Statutes, markDouglas county had in his possession the it effects, when his ing changes cetrain tax moneys, other than monlabor was completed not single new levied and collected for school eys paragraph would be written therein, purposes, and which moneys have but old provisions irreconcilable been collected by said treasurer since therewith would be changed. In truth August 10, 1933, from taxes levied the new enactment accomplished nothfor the year 1932 and prior years, ing of independent nature and its same having been collected by him effect is wholly confined to for levies made in the various resof what theretofore existed, with the pective years, and, whereas, includevident intent of its authors that by ed in said moneys are: the mingling of the new changes with $18,306.91 levied for general county old provisions connected piece of purposes legislation covering the same and 15.44 levied for county road puriginal subject would result. But this poses strictly process of amendment, 730.68 levied for soldier relief and no portion of this act has any 9.43 levied for special emergenother mission. It therefore must be bridge purposes 17.32 levied for of regarded as nothing but an amendpayment atory act and strictly within the scope judgments of the constitutional limitation con1,487.16 levied for mother's pentrolling in the enactment of statutes sions 170.88 levied for agricultural fair for an exclusively amendatory purpose: law shall be amended unpurposes less the new act contain the section levied for county home or sections as amended and the sec"Whereas, all of the obligations of tion or sections so amended shall be Douglas county incurred for and durrepealed." Const. art. III, sec. 14. ing the year 1932 and all prior years have been paid in full none of The true question here is not at all said moneys are required for the pur- new. Illinois has a similar constituposes for which the same were levied. tional provision, and, in a case involvthat is to say, for obligations incurred ing identical controlling principles, for the respective vears for which announced the following rule: "Even the same were levied, and, though an act professes to be an "Now. Therefore Be It Resolved: dependent one and does not purport That none of said moneys amend any prior act, yet if, in hereinbefore referred to are required fact, it makes changes in an existing for the nurnoses for which the same act by adding new provisions and were levied. mingling the new with the old on the same subject, so as to make of "2. That the county teasurer of the old and the new connected piece Douglas county, Nebraska, is hereby of legislation covering the same subauthorized. instructed and directed to ject, the later act must be considered transfer the "monies as an amendment of the former and to the 1934 county within the constitutional prohibition." fund." Galpin City of Chicago, 269 The truth of the averments of the See, also, Brooks Hatch, III. commissioners' resolution is not ques179. tioned. The sole that comIn Sovereign State, Neb. 409, pliance with the same on part of the this court determined that an act in county treasurer is rendered imposform wholly complete and independsible by the provisions of chapter 135, ent, considered as of itself and en1933, the same being an act enacted under the title, "An act to titled: "An act relating to revenue: prohibit the taking, wounding or killand to fix and determine the appliof wild birds of any kind, at any of the proceeds derived from time, within the state of Nebraska, delinquent property taxes collected and providing penalties for the violaafter the close of the fiscal year for be This tion of this was to be considered, such tax levied." which may because of its substance and the effect defense is met by challenge to the of the provisions it contained, an validity of that legislation as having contravention of sec- amendatory statute, and subject to enacted in been the constitutional limitations as such. III of the Constitution, tion 14, art. The reason supporting this rule, as is void. Section 14, art. and therefore given by the court in this Constitution, far as III of our case, is: evident object of this applicable to the present controversy, is to avoid the serious provision which would arise in barassments claims, and gard to conflicting rights, in if statutes, amendatory remedies, their character, could be passed as no change being independent acts, the statute amended, except made in conflict with far it be in so as may act. This, permitthe amendatory introduce endless confusion ted, would law. To avoid and uncertainty into the legislation, the the possibility of such this constitutional provision people by have taken from the legislature the amend statute. The conto so power stitutional provision requires that, in amended shall all the law as cases, in with such reference be given full, will clearly show to the old law as law is substituted.' for what the new Neb. See, also, Smails White, State, 31 Neb. 353, 357; Stricklett Board of Education Moses, 51 Neb. 288; Copland Pirie, 26 Wash. 481. The wisdom of the reasons suggestby Judge Maxwell in Sovereign well as the public State, supra, policy evidenced by the rule itself, only in the finds ample support, not diverse and conflicting interwidely pretations of the language of the act consideration by the truly under learned opposing counsel who prethis the bar of this sented case at court in oral argument, but also clearappears in the many briefs of the amici curiae filed in this case. The conclusion is that, notwithstanding its form, because of its substance and sole purpose, House Roll 345, is adjudged to have been passed in contravention of section 14, art. III and void. While of our Constitution, it was suggested in oral argument at bar of this court that certain the funds in suit, including soldiers' lief, mothers' pensions, and funds for agricultural purposes, were of nature that prevented control by the board of county commissioners, as here sought to be exercised, no such issue made in the pleadings nor discussed in the briefs. However, to the end that there may be no question as to the scope of this opinion, it may be said that the questions suggested are not decided, and the final order entered herein is without prejudice to their future consideration. peremptory writ will issue. WRIT ALLOWED. District Judge, dissents. for the balance as Luikart, Receiver, shown by your books. When the account is closed, please send us the final statement. Very truly yours, Division, by Camella Receivership Willadsen." On January 1932, accordpellee wrote appellant: ance with your request we have closed of the Farmers Merthe account Benkelman, Nebchants State Bank, raska, and are pleased to inclose our No. 62031 for $128.37 cashier's check balance due in accordance being the inclosed. The with the statement charge of $15,908.72 represents prinand interest at on cipal notes as per list inclosed which we for the Farmers have been carrying Merchants State Bank of Benkeland which we return herewith man, registered mail. of the inclosed notes ledge receipt and oblige. Yours very truly, Johnson, Ass't.
From January 1932, to April there numerous confer1932, were ences between the representatives of the receiver and the appellee bank over the debit items of the account. About January 19, 1932, the appellee conceded that one of the debit items was incorrect and paid the receiver therefor and took back this item. At this time there was no agreement on the remainder of the debit items. There continued controversy over the debit items, and no agreement was ever reached thereon, except as to the one item paid by apOn 6, 1932, the receiver pellee. April writes the appellee setting up the history of the transactions up to that time, refuses to concede the debit items, and closes the letter with: undersigned hereby surrenders all of the above notes to your bank on the theory that this property belongs to your bank, and the undersigned receiver of the said Benkelman bank hereby demands the payment to him bank of the sum of by your 06 together with interest thereon at cent from December seven (7) per 23, 1931, being the amount of balance and credit due the said Benkelbank as depositor in your man bank."
The appellee sent on the last day of each month a regular form statement to all the country banks having deposits with it. Exhibit is such follows: "Farmers statement, as Merchants State Bank, Benkelman, Nebraska. In account with the Continental National Bank, Lincoln, Nebraska. Statement of your account for month of Please examine at once. If no error is reported in ten days, this account will be considered correct." Then debit and appears credit columns, and under the debit column no entries are made, while under the credit column appears "Bal. Nov. 28, 16.017.36, Dec. 28 Ford. Dec. 30, 1931 Exhibit was mailed by appelles about 1932, to the bank at January Benkelman, checked there by appellants agent in charge of the bank and then forwarded to appellant in Lincoln. Agents of the appellant found Exhibit the files of the receivership division some time in January, 1932. The representative of the receiver who had supervision of this particular matter, with his assistants, testify that accuracy of the credit items on exihibit was never questioned by them; to their knowledge no one connected with the appellant ever did; that the only controversy that ever existed with appellee was over the debit items; that as to these there were continuous controversies from January 4, 1932, to April 1932, and that there was never any agreement on these items. Receiver claims exhibit was an account stated between the parties, presenting this soe claim by his petition. An account stated is an agreement between the parties who have had previous transactions of monetary character that all the items of the account representing such transactions, and the balance struck, correct, including a promise are express or implied, for the payment of such balance. Hendrix Kirkpatrick, 48 Neb. 670: Jorgensen Kingsley, 60 Neb. 44; Haish Dillon, 71 Neb. 290. In stating an account, like any agreement, the minds of the parties must meet. Hendrix Kirkpatrick, supra; Haish Dillon, supra. There is no issue in this case as to the justness or legality of the debits claimed by the appellee. The sole issue is: Does exihibit create an account stated A motion for directed verdict admits all the material and relevant evidence, with proper inferences therefrom, and if there was any evidence from which the jury might find that there was an account stated, then there was erin directing verdict. We think the trial court properly directed verdict under the evidence. Considering all the contemporaneous facts and circumstances, there was no account stated between the parties. There was no agreement, express or implied, that all the items of the account were correct, nor as to the payof balance. The minds of ment any the parties did not meet. Exhibit cannot be considered as standing alone under the circumstances of this case. On its face it appears to be tentative; submitted for ten days' consideration as to errors. Within the ten-day period controversy arose. In the monetary dealings bebetween the there were debit and credit items. There was controversy as to the debit items and necessarily would be as to balance due to the receiver on controverted account. Error is claimed because appelto withdraw his rest lant's request and submit further evidence was denied. The request was made after the court had announced it was going to sustain appellee's request for directed verdict. Whether party may withdraw his rest and introduce further testimony rests within the sound discretion of the trial court, and there indication in the record that is no this discretion was abused. We think it was not error for the trial court to permit the letter of January 4, 1932, to the receiver as part of the of the assistant to the receiver in charge of banks. It is not questioned failed that the letter is genuine; that it was received, and it is part of the controbetween the parties. versy The record failing to show prejudicial error, the judgment is AFFIRMED.
