Appel v. State ex rel. Shutter-Cottrell

• Decision Date: 01 August 1900
• Citation: 61 P. 1015,9 Wyo. 187
• Parties: APPEL, CHAIRMAN BOARD CO. COMMISSIONERS v. STATE EX REL. SHUTTER-COTTRELL
• Court: Wyoming Supreme Court

61 P. 1015

9 Wyo. 187

APPEL, CHAIRMAN BOARD CO. COMMISSIONERS v. STATE EX REL. SHUTTER-COTTRELL

Supreme Court of Wyoming

August 1, 1900

ERROR to the District Court, Sweetwater County, HON. DAVID H CRAIG, Judge.

This was a suit in mandamus, wherein the relator, G. W Shutter-Cottrell sought to have the respondent, Peter Appeal as the chairman of the board of county commissioners commanded to sign a certain county warrant ordered issued to the relator, by the board, upon the allowance of his claim for services performed as an attorney in assisting the county attorney in defending a suit against the board. The District Court awarded a peremptory writ, and the respondent prosecuted error. The facts are stated in the opinion.

Affirmed.

D. A. Reaville, D. A. Preston, and John H. Chiles, for plaintiff in error.

In mandamus, the respondent may demur, if the relator's pleading does not state sufficient facts. (13 Ency. Pl. & Pr., 702; R. S., Sec. 4201; State ex rel. v. Burdick, 4 Wyo., 276; State v. Crites, 48 O. St., 168; High Ex. Leg. Rem., 451.) The petition is fatally defective because it fails to show that there were moneys in the treasury to pay the warrant. (R. S. Sec. 1216; In re Fremont Co., 8 Wyo. 1; 54 P. 1073; Board v. McManus, 54 Ark. 446; Merrill on Mandamus, 132, 135; 13 Ency. Pl. & Pr., 675, 691; 14 Ency. L., 222; Ray v. Wilson, (Fla.) 14 L. R. A., 773; State v. Bramwell, 39 Kan. 700; McConoughey v. Jackson, 101 Cal. 265; Miller v. State, 42 Kan. 327; State v. Warner, 55 Wis. 271.) It is defective for want of a statement that the claim was itemized in writing, and verified, as the law requires. (R. S., Sec. 1062; Const., Art. 16, Sec. 7; State v. Daly, 50 N. J. L., 356; Chalk v. White, 4 Wash., 156; 2 Beach Pub. Corp., 872; 13 Ency. Pl. & Pr., 675; 4 id., 658; O'Keefe v. Foster, 5 Wyo., 343; Bank v. Charles, 86 Cal. 322; Bank v. Ludvigsen, 8 Wyo., 56 P. 994.) The plaintiff must show a clear legal right. (High Ex. Leg. Rem., 450; State v. La Grave, 22 Nev. 417; State v. Barber, 4 Wyo., 409.) The employment of the relator was unauthorized. R. R. Co. v. Baker, 6 Wyo., 369, 45 P. 494; 7 Ency. L., 979; Mellor v. Board, 35 P. 712 (Ida.); R. S. Secs. 1078, 1106, 1079, 1104, 1110; 2 Beach Pub. Corp., 643; Modoc Co. v. Spencer, 103 Cal. 498; Waters v. Trovillo, 47 Kan. 197; Clough v. Hart, 8 id., 325; Cuming Co. v. Tate, 10 Neb. 193; Brome v. Cuming Co., 34 Am. & Eng. Corp. Cas., 481 & note; Ransom v. Mayor, 24 Barb., 226; Merriam v. Barnum, 116 Cal. 619; Montgomery v. Jackson Co., 22 Wis. 69.) The powers of the board were exhausted by a single exercise, and could not be rescinded, and the action of the board in reconsidering their former action rejecting the claim, and allowing it, was void. (7 Ency. L., 1005, 1008.) Mandamus will not lie to enforce an illegal claim against a county. (Merriam v. Board, 72 Cal. 518; McFarland v. McCowen, 98 id., 329; State v. Yeatman, 22 O. St., 546; State v. Com'rs., 21 id., 648; Wood v. Strother, 76 Cal. 545; State v. Headlee, 17 Wash. 637; Barnett v. Ashmore, 5 id., 163; High Ex. Leg. Rem., 354; Merrill on Man., 126.)

M. C. Brown, for defendant in error.

This being an action to enforce a ministerial duty, the petition is sufficient, since the board will be presumed to have performed its duty. Enough is alleged to require the defendant to show illegality, if any is claimed. (R. S. Secs. 1073, 1216; Thomp. Corp., 7711; Coombs v. Lane, 4 O St., 112; 6 id., 288; 2 id., 241; Bank v. Dandridge, 2 Wheat., 70; U. S. v. Crusell, 14 Wall., 1; Whart. Ev., 1318-19; Babcock v. Goodrich, 47 Cal. 508; Burnett v. Auditor, 12 O., 54; R. R. Co. v. Stockton, 51 Cal. 328; Faulk v. Strother, 84 id., 544; High Ex. Leg. Rem., 350; McConoughey v. Jackson, 101 Cal. 269.) The board could rescind its former action. (Dillon Munic. Corp. 290; Estey v. Shaw, 56 Vt. 690; 101 Cal. 269.) Mandamus is the proper remedy.

POTTER, CHIEF JUSTICE. CORN, J., and KNIGHT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

This was an application in the district court on the relation of G. W. Shutter-Cottrell for a writ of mandamus to compel Peter Appel, the chairman of the board of county commissioners, to sign a warrant ordered to be issued by the board to the relator in the sum of two hundred dollars.

The allegations of the petition are substantially as follows: That said Appel is the legally chosen chairman of the board of county commissioners of Sweetwater County; that on April 5, 1899, the said board at a regular session thereof allowed a claim of the relator in the sum of two hundred dollars, and ordered it paid out of the general fund of the county, and ordered the county clerk to draw a warrant for the same in relator's favor; that the clerk drew said warrant and signed and sealed the same, and the county treasurer countersigned it, but that Peter Appel, the chairman of the board refused to sign said warrant, although relator had demanded of him that he sign it as ordered and drawn by the board. A copy of the warrant, as made out by the clerk, is set out, by which it appears that it is numbered 13741, dated April 5, 1899, and commands the county treasurer to pay to G. W. Shutter-Cottrell, or order two hundred dollars, for county attorney assistance, out of general fund; and represents that it is issued by order of the board, and bears the signatures of the clerk and treasurer of the county. It is alleged that without the signature of the chairman of the board the warrant is of no value, and that relator is without remedy except in this proceeding. The prayer is for a writ of mandamus commanding the defendant, (plaintiff in error here) to sign said warrant as chairman of the board.

Upon the filing of the petition, and its presentation, with affidavits and copies of records, as is shown by the order of the district judge, an order was made by said judge that the application be fixed for hearing at a date named therein, and that the defendant appear and show cause why a peremptory writ of mandamus should not be issued in accordance with the prayer of the petition. On the day fixed by said order, the defendant filed a demurrer to the petition on the ground that the same does not state facts sufficient to constitute a cause of action. This demurrer was submitted without argument and overruled, and the defendant excepted thereto.

Thereupon defendant filed an answer alleging that on March 7, 1899, the relator presented to the board a claim of two hundred dollars (the same mentioned in the petition), alleged to be due him for services as an attorney and counsellor at law, in assisting the county and prosecuting attorney of said county, in the case of Robert Smith, v. The Board of the County Commissioners of Sweetwater County, pending in the district court of Sweetwater County, which was a mandamus proceeding brought to compel the board to designate the Rock Springs Miner, a newspaper, as the official paper of said county. It is averred that at all times from the institution of that case until its final determination, the county and prosecuting attorney of said county was present in said county and not absent therefrom; that the relator was never employed by the board in said case, nor in any other cause, that no necessity existed for the employment of counsel, and no minutes or record of said board were ever made, kept or entered, showing the necessity and nature of said alleged employment.

It is further alleged by the answer that on the 4th day of April, 1899, the board rejected and disallowed the relator's said claim, and that the action of the board in reconsidering the matter and allowing the claim, as alleged in the petition, was without jurisdiction, illegal and void; that the said claim has never been allowed by the board, and if so allowed, the action was without jurisdiction, illegal and void; that said claim is not a valid charge against said county, and the board exceeded its power in allowing it. The following also appears in the answer: "That the defendant has no information or knowledge sufficient to form a belief as to whether or not there are any funds in the county treasury of the said county with which to pay the said warrant and therefore alleges the truth to be that there are no funds with which to pay the same."

The cause was finally heard and determined upon the petition, answer and an agreed statement of facts. The agreed statement is as follows:

"That on the 12th day of February A. D. 1899, D. G. Thomas, claiming to act by direction of two of the commissioners, requested the relator to aid him in representing the county in resisting certain mandamus proceedings brought by Robert Smith against the board of county commissioners of Sweetwater County, to require said board to designate the Rock Springs Miner, a newspaper published in Sweetwater County as the official paper of the county.

"That thereafter and on or about the 15th day of February, and before said matter was tried and considered by the court, T. B. Davis and Marcus Outsen, being, both county commissioners of said county, and being there in the office of D. G. Thomas, at Rock Springs, Wyoming, talked with relator about his employment in the said matter of mandamus, and consulted with him about the case.

"That on the 25th day of February, 1899, said case came on for hearing, and was tried and determined by the court, judgment being rendered in favor of the said board of commissioners. That in said trial the relator in part represented the said board and performed such service therein as an attorney at law as required by his employment.

"That thereafter the relator prepared his bill for services in due form as by law required, and presented same to board for allowance. That the action of said board and its proceedings upon...