Cont'l Hose Co. No. 1 v. Mitchell

• Decision Date: 11 February 1906
• Citation: 105 N.W. 1108,15 N.D. 144
• Parties: CONTINENTAL HOSE CO. NO. 1 v. MITCHELL, City Treasurer.
• Court: North Dakota Supreme Court

15 N.D. 144

105 N.W. 1108

CONTINENTAL HOSE CO. NO. 1

v.MITCHELL, City Treasurer.

Supreme Court of North Dakota.

Feb. 11, 1906.

Syllabus by the Court.

Courts of equity will not grant relief by injunction in cases where there is a plain, speedy, and adequate remedy at law.

An action for a permanent injunction against a city treasurer is not maintainable to determine the rights of fire companies to money claimed by them under the provisions of chapter 208, p. 265, Laws 1901.

Appeal from District Court, Cass County; Charles A. Pollock, Judge.

Action by the Continental Hose Company No. 1 against Charles H. Mitchell, city treasurer. Judgment for plaintiff, and defendant appeals. Reversed.Newman, Holt & Frame, for appellant. Barnett & Richardson, for respondent.

MORGAN, C. J.

This is an action for a permanent injunction against the defendant as treasurer of the city of Fargo. The plaintiff is a fire company duly incorporated under the laws of the state. The pleadings raise an issue as to the rights of the plaintiff to a portion of the 2 per cent. of the money payable by the state out of the premiums received upon policies issued on property in the city of Fargo, and the duties of the city treasurer in reference to such money. The right to such money is governed by the provisions of chapter 208, p. 265, of the Laws of 1901, amending sections 2464 and 2465 of the Revised Codes of 1899. Said chapter 208 prescribes the duties of said treasurer in reference to said money in the following manner: “And when so received by said treasurer the same shall be paid over to the treasurer of each separate organized fire company, or companies, in equal proportion, who are members in good standing in the North Dakota Firemen's Association, and having a membership of at least fifteen members for a period of eight months prior to the date of the certificate of the clerk, as provided in section 2462, and having the management of at least one steam, hand or fire engine, hook and ladder truck or hose cart, upon the written order of such company or companies, approved by the city council, trustees or other governing body of such city, town or village; provided, that in cities, towns and villages having a paid fire department, the amount so received by the city, town or village treasurer shall be placed in a fund to be disbursed by the city council, trustees, or other governing body of such city, town or village in maintaining such fire department.”

The complaint alleges the facts which the plaintiff claims entitle it to a portion of the money payable under the provisions of said section. Upon its right to a permanent injunction the allegations of the complaint are as follows: “That the defendant herein threatens to, and the plaintiff alleges that he will, if not restrained by this court, pass said money belonging to this plaintiff to a certain fund...