Bacon v. City of Tacoma

• Decision Date: 22 August 1898
• Citation: 54 P. 609,19 Wash. 674
• Parties: BACON ET AL. v. CITY OF TACOMA.
• Court: Washington Supreme Court

54 P. 609

19 Wash. 674

BACON ET AL. v. CITY OF TACOMA.

Supreme Court of Washington

August 22, 1898

Appeal from superior court, Pierce county; J. A. Williamson, Judge.

Action by G. H. Bacon and another, co-partners as Bacon & Ells against the city of Tacoma. Judgment for defendant. Plaintiffs appeal. Affirmed.

Edward E. Cushman, Francis W. Cushman, and Chas. Ethelbert Claypool for appellants.

W. H Pritchard and Walter M. Harvey, for respondent.

ANDERS J.

The plaintiffs and appellants brought this action to recover the amount alleged to be due upon three certain warrants of the city of Tacoma. It is alleged as to each warrant that it was issued and delivered on September 18 1893, for value received, by the duly-authorized agents and officers of the city, and that it was presented for payment on September 21, 1893, to the treasurer of said city, and indorsed by him, "Not paid for want of funds"; that no payments have been made thereon, though plaintiffs have often demanded payment of the defendant; that the city has sufficient money in its general fund properly applicable for the purpose to pay the several warrants and accrued interest thereon. It is further alleged, on information and belief, that the refusal of the defendant, its agents and officers, to pay said warrants, is for the reason that there is a dispute as to the facts between plaintiffs and defendant as to whether there is anything due on each of said warrants, defendant claiming it has been paid, and is a forgery, which plaintiffs deny. A general demurrer was interposed to the complaint, and sustained by the court, and, plaintiffs declining to plead further, judgment was rendered against them dismissing the complaint and for costs, from which judgment this appeal was taken.

It appears that the only question argued or considered in the court below was whether plaintiffs had resorted to the proper remedy, the respondent contending that mandamus against the treasurer of the city is the only proper remedy, and that the appellants could not maintain an ordinary action at law to collect the amount of the warrants. And this contention raises the sole question presented to this court for determination. The learned counsel for the appellants, while recognizing the general rule that mandamus is the proper remedy to compel a city treasurer to pay city warrants in the order prescribed by law, nevertheless insist that the fact that the complaint in this case shows that there is a disputed question of fact takes the case out of the ordinary rule of procedure. This contention seems to be based upon what was said upon this proposition in the first opinion of this court in Bardsley v Sternberg, 17 Wash. 243, 49 P. 501; but it will be noticed, by reference to that case, that the question was not there deemed material, and, further, that the court there overlooked the plain provisions of our own late statute upon this questions. By the act of March 13, 1895, entitled "An act regulating special proceedings of a civil nature," the proceeding in mandamus is assimilated as nearly as possible to ordinary actions at law. It is deemed a special civil proceeding, and the statute (section 16, p. 117, Laws 1895) provides that the writ of mandate may be issued to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, etc. And section 20 of the act provides that on the return of the alternative writ, or the day on which the application for the writ is noticed, the party on whom the writ or notice is served may show cause by answer under oath, made in the same manner as an answer to a complaint in a civil action. And in section 21 it is provided that if an answer be made which raises a question as to a matter of fact essential to the determination of the motion, and affecting the substantial rights of the parties, and upon the supposed truth of the allegation of which the application for the writ is based, the court may, in its discretion, order the question to be tried before a jury, and postpone the argument until such trial can be had and a verdict certified to the court. A new trial is also provided for, and provision is made as to the mode of proceeding in case no answer be made. The...