Calmenson Clothing Co. v. Kruger
| Decision Date | 10 August 1938 |
| Docket Number | 8133. |
| Citation | 281 N.W. 203,66 S.D. 224 |
| Parties | CALMENSON CLOTHING CO. v. KRUGER, Mayor. [a1] |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Brown County; Howard Babcock, Judge.
Mandamus action by the Calmenson Clothing Company against Ira Kruger as Mayor of the City of Aberdeen, to compel the Mayor to sign a warrant issued by the City Auditor to the plaintiff. From an adverse judgment, defendant appeals.
Modified and, as modified, affirmed.
Van Slyke & Agor, of Aberdeen, for appellant.
E. B Harkin, of Aberdeen, for respondent.
Plaintiff applied for a writ of mandamus to compel the mayor of the City of Aberdeen to sign a warrant in the sum of $199 issued by the city auditor of the City of Aberdeen to the plaintiff. Prior to the commencement of the action, the claim had been presented to the city commissioners, allowed and ordered paid. The record discloses the fact that the mayor had voted for the allowance of the bill and claim, but thereafter changed his mind and refused to sign the warrant.
From the testimony it appears that the City of Aberdeen for some time had maintained a paid, uniformed fire department. That Commissioner Wallace, acting on behalf of the city, purchased certain overcoats from the plaintiff for use of the men in the fire department. The defendant, Ira Kruger, as mayor of the City of Aberdeen, contended upon the trial that there was no authority of law permitting the city to expend money for such purposes as there had been no appropriation ordinance made for the current year providing funds for this specific purpose and that the appropriation ordinance enacted by the city failed to provide for dress overcoats for the firemen and failed to specify any expenditure except for additional equipment and the repair thereof; and further, that subsection 20 of Section 6169, Revised Code 1919, specifies the only purpose for which expenditures may be made in relation to the operation of a fire department. Also, that Sections 6334, 6335 and 6336, specifying the authority of the city with respect to the expenditures by the city, and acts amendatory thereto, provide that no expenditures for such purposes may be made without an appropriation ordinance for the current year providing a fund for the specific purpose. Upon the close of the trial, the court made findings of fact conclusions of law and a judgment in favor of the plaintiff. A motion for new trial was submitted to the court. Upon the overruling of the motion for new trial, the defendant perfected an appeal to this court from the judgment and peremptory writ of mandamus and from the order overruling his motion for new trial.
The court's finding No. 3 relates to the purchase of the overcoats and agreement to pay the purchase price, and states that at a regular meeting of the city commissioners of the city such sale and claim was presented and audited and allowed and ordered paid, and that all of the city commissioners and the mayor voted favorably to the allowance of said bill. In finding No. 5, the court found that at the time the warrant was presented to the mayor an appropriation for expenditures of the fire department of the City of Aberdeen had been made for the current year of 1937, and that such appropriation had not been spent nor exhausted. In finding No. 9, the court found that the coats purchased were reasonable and suitable for service and wear for the fire department maintained by the city of Aberdeen and that the city commissioners had approved and made the allowance of the claim as an expenditure of the city money for the equipment. Also, by finding No. 10, that a city of the first class may exercise its discretion as to whether or not it shall provide uniforms for the members of its fire department. We are of the opinion that the findings must be sustained as they seem correct from the evidence submitted.
In considering the assignments of error, we examine first, exhibit 1, the annual appropriation ordinance, and under the heading "General Fund," we find this item, "Fire department account, $29,535.00." We believe the appropriation ordinance is sufficient and complies fully with certain provisions of our statutes relating to and specifying what appropriation ordinances shall contain. Section 6334, Revised Code 1919, in part is as follows:
Examining the appropriation ordinance in the light of the statute, we must admit that the appropriation ordinance is broad in that it uses, so far as the fire department is concerned, the words, "Fire department account, $29,535.00." It will, however, be observed that immediately above this language there is contained the number of the ordinance, the statement that it is for the annual appropriation of the fiscal year of 1937 for the City of Aberdeen and that the sums of money are for the purposes which are deemed necessary to defray all necessary expenses and liabilities of the City of Aberdeen.
We do not believe that it is necessary to enumerate countless items into an appropriation ordinance in order to stay within the meaning of our statute. See Hett et al. v. City of Portsmouth et al., 73 N.H. 334, 61 A. 596; City of Leadville v. Matthews, 10 Colo. 125, 14 P. 112; Commonwealth ex rel. Greene v. Gregg, 161 Pa. 582, 29 A. 297; and Commonwealth ex rel. Firemen's Relief Association v. Barker, 211 Pa. 610, 61 A. 253.
We believe that the city council had implied power to purchase the overcoats, and what constituted proper equipment...
To continue reading
Request your trial