State v. Fagan

Decision Date16 December 1893
PartiesSTATE ex rel. O'HARA v. FAGAN, Mayor.
CourtNew Jersey Supreme Court

(Syllabus by the Court.)

Original application in the name of the state, at the relation of John F. O'Hara, for mandamus to Laurence Fagan, mayor of the city of Hoboken. Heard on rule to show cause. Denied.

Argued November term, 1893, before ABBETT and DIXON, JJ.

Mr. Minturn, for relator.

Mr. Edwards, for defendant.

DIXON, J. On July 26, 1893, the common council of Hoboken passed a resolution directing the city clerk to draw warrants on the salary fund in favor of the city officers to pay salaries in full to August 1, 1893, and among the officers and salaries named in the schedule annexed to the resolution was "James F. Minturn, one quarter's salary as counsel to the commissioners of adjustment, $250." Pursuant to section 34 of the city charter, this resolution was submitted to the mayor on July 27th, and signed by him. On July 26, 1893, in anticipation of such a resolution, warrants for the payment of the various salaries were drawn and signed by the mayor. This was in violation of the charter, section 19 of which directs that no money shall be paid out except on warrant signed by the mayor and clerk, and that no warrant shall be drawn by said officers except in pursuance of an order of the council. On July 27th the mayor canceled the warrant in favor of Mr. Minturn by drawing his pen through his signature. On October 19, 1893, the relator, assignee of Mr. Minturn, obtained a rule that the mayor show cause why a mandamus should not issue commanding him to sign and deliver to the relator a warrant for said quarter's salary. Under this rule, testimony has been taken, which shows that the mayor signed the resolution of July 26th thinking that Mr. Minturn's salary was not included therein, and that he signed the warrant for such salary by inadvertence, among a number of others, having previously instructed the clerk's assistant not to present him a warrant for Mr. Minturn's salary, as he did not intend to sign it. The reasons given by the mayor for his refusal to sign such a warrant are these: Prior to January 6, 1891, Mr. Minturn was the attorney of the city. On that day the commissioners of adjustment of the city organized under the statute known as the "Martin Act," (Supp. Revision, p. 608,) and recommended that the common council allow the corporation attorney the increased salary provided by law as compensation for services as counsel to the commissioners. Thereafter Mr. Minturn acted as such counsel, as his duty was, under section 3 of the Martin act. On June 10, 1891, the common council passed a resolution appointing Mr. Minturn attorney and counsel to the commissioners at a salary "of $1,000, as fixed by law." This resolution was passed under three supplements to the Martin act, (P. L. 1889, pp. 50, 308, and P. L. 1891, p. 450,) which authorized the common council to increase the salary of the city counsel to an amount not exceeding $1,000 per annum above that already paid, "such increase to take effect from the time of the passage of any such resolution." On July 30, 1891, the city paid Mr. Minturn $583 for his salary as counsel to the commissioners, and on each succeeding quarter day up to May 1, 1893, paid him $250, thus...

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3 cases
  • Ouachita Power Co. v. Donaghey
    • United States
    • Arkansas Supreme Court
    • December 23, 1912
    ...v. McDiarmid, 26 Ark. 482; State v. Anderson, 100 Wis. 523, 76 N.W. 482; Am. & Eng. Ency. of Law, p. 753-b; 25 Cyc. 155; State v. Fagan, 56 N.J.L. 279, 27 A. 1089. court did not err in denying the writ and its judgment is affirmed. ...
  • Bd. Of Com'rs Of Raritan v. Bridgewater Tp.
    • United States
    • New Jersey Supreme Court
    • June 3, 1948
    ...Mandamus is not the appropriate proceeding in which to do so. Where there is a doubtful case, the writ will not be issued. O'Hara v. Fagan, 56 N.J.L. 279, 27 A. 1089. The rule to show cause is discharged with ...
  • The First National Bank of Topeka v. Heflebower
    • United States
    • Kansas Supreme Court
    • December 11, 1897
    ...51 P. 225 58 Kan. 792 THE FIRST NATIONAL BANK OF TOPEKA v. DAVID H. HEFLEBOWER, as State Treasurer No. 10881Supreme Court of KansasDecember 11, 1897 ... Decided ... January, 1897 ... Original proceeding in ... statute. Supervisors v. The Township of Mentor, 94 ... Mich. 386, 54 N.W. 169; The State, ex rel. O'Hara, v ... Fagan, 56 N.J.L. 279, 27 A. 1089. "The court being ... vested with some discretion will not issue a writ of ... mandamus, except where it seems to be ... ...

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