Cathers v. Moores

• Decision Date: 05 January 1907
• Citation: 110 N.W. 689,78 Neb. 13
• Parties: CATHERS v. MOORES ET AL.
• Court: Nebraska Supreme Court

78 Neb. 13

110 N.W. 689

CATHERS

v.MOORES ET AL.

Supreme Court of Nebraska.

Jan. 5, 1907.

Syllabus by the Court.

Unofficial citizens cannot maintain an action on the behalf and practically in the name of public corporations to recover for the conversions or embezzlements or other torts or misdeeds of officials of municipalities and of persons having dealings with them.

Commissioners' Opinion. Department No. 1. Appeal from District Court, Douglas County; Sears, Judge.

Action by John T. Cathers against Frank E. Moores. On death of defendant action revived in the name of Mary Regina Moores, executrix, and others. Judgment for defendants, and plaintiff appeals. Affirmed.Byron G. Burbank, for appellant.

Weaver & Giller and W. J. Connell, for appellees.

AMES, C.

The petition alleges that the plaintiff is a citizen, resident, and taxpayer of the city of Omaha, and that he prosecutes the action for the benefit of all other persons similarly situated for the use and on behalf of the city, and that he has requested the city attorney to begin and prosecute a like suit in the name and on the behalf of the city, but that he has refused so to do, giving as his reason for such refusal that such an action would be without authority of law. The action was begun against Frank E. Moores, then mayor of the city, but now deceased, August H. Hennings, then treasurer of the city, but now deceased, Charles O. Lobeck, comptroller of the city, and four other persons, members of the city council. The city is also named as defendant, and the suit has been revived against the personal representatives of the deceased defendants. The petition alleges, in substance, that in May, 1904, the council of said city passed, with the concurrence of such of the defendants as were members of that body, and that the mayor approved and signed, an ordinance purporting to appropriate the sum of $15,539.75 for the payment of certain persons for services rendered by them as common laborers in cleaning the streets of the city, and that the mayor, treasurer, and comptroller had by their concurrent action disbursed that sum from the treasury in the making of the payments mentioned. But it is alleged that all the foregoing proceedings were without warrant or authority of law, and resulted in an injury and damage to the city in the sum so paid out, because the laborers for whose services the payments were made had not, previous to the rendition thereof, been employed, nor had their wages been fixed by any authority empowered by law to do said acts or either of them, although the city charter expressly enacts that “no laborer employé shall receive any compensation whatsoever for services rendered prior” to the time of their employment, and the fixing of the compensation by the board of public works and the mayor and council, as provided by the act. The petition therefore alleges, in effect, that the persons named were by their conduct, recited, guilty of a tortious conversion of the moneys so disbursed, for which they and their personal representatives were and are jointly and severally liable to the city. The prayer of the petition is that the defendants, except the city, be charged with and required to account for the moneys so paid out as trustees, and that the plaintiff have and recover said sum, with interest, for the use and benefit of the city, and for such further and other relief as may be just and equitable. We fail to discover any ground for the interposition of the equity powers of the court. The cause of action on behalf of the city, if there is one, which we do not decide, is in tort for a wrongful conversion or embezzlement, for which the law...