Bowles v. Perkinson
| Decision Date | 21 March 1922 |
| Docket Number | Case Number: 12619 |
| Citation | 1922 OK 93,205 P. 770,85 Okla. 244 |
| Parties | BOWLES, Mayor, v. PERKINSON. |
| Court | Oklahoma Supreme Court |
¶0 1. Mandamus--Ministerial Duties of Officers.
A writ of mandamus may lawfully issue, from a court having jurisdiction, to compel an executive officer to perform a mere ministerial duty, which does not call for the exercise of his judgment or discretion, but which the law gives him the power and imposes on him the duty to do.
2. Mandamus -- Peremptory Writ Without Evidence--Lack of Defense.
In mandamus proceedings, where the averments in the alternative writ are sufficient to authorize the relief sought, and the return of the respondent does not state a defense, it is nor error for the trial court to grant the peremptory writ without hearing testimony.
Error from District Court, Bryan County; Geo. S. Marsh, Judge.
Mandamus by W. M. Perkinson against R. P. Bowles, Mayor of Durant. Judgment for plaintiff, and defendant brings error. Affirmed.
Hatchett & Ferguson and Deck & Newman, for plaintiff in error.
McPherren & Cochran and Hayes & McIntosh, for defendant in error.
¶1 W. M. Perkinson commenced this action in the district court of Bryan county against R. P. Bowles, mayor of Durant, for a writ of mandamus to compel said mayor to issue and sign certain warrants in payment of two claims that had been regularly allowed by the city council of Durant. The petition alleges, in substance, that plaintiff filed with the city council of Durant his claims (giving the number of said claims) for salary as water superintendent for the month of May, 1921, and for the month of June, 1921, which claims were duly allowed by the city council, and the city clerk had issued warrants for said claim, but the mayor refused to sign and have the clerk attest the same. The district court issued the alternative writ, and defendant, Bowles, filed his return and as reasons for not signing said warrants stated, first, that Perkinson had never been selected, chosen, or appointed as water superintendent since the 1st of May. 1921; second, that charges of incompetency and dereliction had been preferred against the water superintendent and the mayor had suspended Perkinson and claimant had never demanded trial and was still suspended; third, that the warrants were so drawn that it would make it a crime for the mayor to sign the same; fourth, that the water superintendent had drawn excessive salary in the past in the sum of $ 2,900. Defendant admitted that he was mayor. Motion was made to quash and dismiss the writ, which was denied. The court made an order requiring the defendant to set out the charges filed against the water superintendent, and it was admitted in open court that no charges were filed by any one, except the mayor made certain oral charges himself, and then made an order attempting to suspend the water superintendent. Motion was made for judgment on the pleadings, which was sustained. From said judgment the defendant has appealed.
¶2 The only question presented is whether the return of the mayor stated a defense. In determining whether the return stated any defense on behalf of the mayor it will be necessary first to consider the duties of the mayor in signing warrants drawn upon the city treasurer; whether said duties are ministerial, or require the exercise of discretion or judgment. Section 603, Rev. Laws 1910, provides for presenting claims against the city and empowers the city council to audit and allow said claim. Section 562, Rev. Laws 1910, makes it the duty of the mayor to sign orders and warrants drawn upon the treasurer for money, and for him to require the city clerk to attest the same, and affix the seal of the city thereto and keep an accurate record thereof in a book provided for that purpose. There is no section of the statute that has been called to our attention that authorizes or empowers the mayor to audit claims or reject them after the same have been allowed by the city council. The Legislature has seen fit to invest the power of auditing and allowing claims in the city council. The mayor's duties in signing warrants are very similar to those of county clerks in attesting warrants of the county.
¶3 The powers...
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