Diefenderfer v. State ex rel. First National Bank of Chicago

• Decision Date: 25 April 1905
• Parties: DIEFENDERFER, MAYOR, ET AL. v. STATE EX REL. FIRST NATIONAL BANK OF CHICAGO ET AL
• Court: Wyoming Supreme Court

80 P. 667

13 Wyo. 387

DIEFENDERFER, MAYOR, ET AL. v. STATE EX REL. FIRST NATIONAL BANK OF CHICAGO ET AL

Supreme Court of Wyoming

April 25, 1905

ERROR to the District Court, Sheridan County, HON. JOSEPH L STOTTS, Judge.

Mandamus to compel the issuance to relator of certain refunding water bonds of the town of Sheridan. Heard on motion to dismiss proceedings in error. The facts are stated in the opinion.

Petition in error dismissed.

W. S Metz, C. L. Sackett and S. T. Corn, for defendants in error (in support of the motion).

Though the Mayor and Council are named as defendants, the proceeding is against the city and does not assume the character of a proceeding against the individuals unless it becomes necessary to issue an attachment. (Louisville v McKean, 18 B. Mon., 13; Maddox v. Graham, 2 Metc. (Ky.), 71; Campbell v. Hall (Wash.), 69 P. 12.) The Town Council having acquiesced in the judgment and done all that it could do to require the issuance of the bonds in controversy, the plaintiff in error having mere ministerial duties to perform in the premises, have no appealable interest and no right to demand a review of the judgment. (Williams Estate, 122 Cal. 76; Bryant v. Thompson, 128 N.Y. 426; Labette County v. U.S. 112 U.S. 217; Cherokee v. Wilson, 109 U.S. 621; State v. City, 15 Wis. 41; 28 La. Ann., 30; Gurlbran v. Detrege, 32 id., 909; Garner v. Prewitt, 32 Ala. 13; Foster v. Smith, 115 Cal. 611; Worth v. Worth, 63 N.E. 917; Betts v. State, 93 N.W. 167; Mills v. Green, 159 U.S. 653; Thomson-Houston Co. v. Nasson, 119 F. 354; San Diego v. Supervisors, 97 Cal. 438.) Appellate court cannot assume jurisdiction, nor express opinions which will be of any binding force, unless involved in a controversy between adverse parties; and when the order has been obeyed or there is no controversy pending, the appeal must be dismissed. (Jacksonville v. Crowell (Ore.), 52 P. 693; 2 Spelling App. Proc., 650; Wash. M. Co. v. Dist., 137 U.S. 62; Thompson v. U.S. 103 U.S. 480.)

Counsel also cited upon the general proposition involved in the motion to dismiss the following additional authorities. (Dillon Mun. Corp., 663, and note; 2 Ency. Pl. & Pr., 160; McGregor v. Pearson, 51 Wis. 122; Wiggins v. Servant, 39 Am. Dec., 716; McComb v. Little Gantz Co., 75 N.W. 1128; Start v. Martin, 32 So. 726; Sullivan v. Gary, 92 N.W. 672; Crouse v. Nixon, 70 P. 885; King v. Gilford, 70 S.W. 1064; Corne v. Dunbar, 71 S.W. 513; Ellis v. Whittaker, 64 P. 62; Parsons v. Titerock, 64 P. 1028; Knight v. Hirbour, 67 P. 1104; State v. Board, 21 So. 721; People v. Squire, 18 N.E. 362; State v. Napton, 25 P. 1045; In re Manning, 34 N.E. 931; 14 Ency. Pl. & Pr., 900; 19 Pl. & Pr. and note, 179; Dockinger v. Schultz, 52 N.W. 261; McIntire v. State, 139 Ill. 171; Radcliffe v. Patton, 37 W.Va. 197; The People v. Phillips, 67 N.Y. 582; Bryant v. Thompson, 128 N.Y. 426; In re Treadwell, 111 Cal. 189; Wedekind v. Bell, 69 P. 612; Hice v. Orr, 47 P. 424; State v. Meachem, 50 P. 52; People v. Com. Council, 82 N.Y. 575.)

E. E. Enterline, W. E. Mullen and J. F. Hoop, for plaintiffs in error, contra.

The Mayor and Clerk having refused and continuing to refuse to execute the bonds as required by the judgment, it is evident that the same controversy exists between the parties as upon the trial. The plaintiffs in error were permitted to and did give a supersedeas bond conditioned as required by law, and the operation of the judgment is still suspended by reason of the supersedeas bond and by non-compliance of the plaintiffs in error with the judgment of the District Court. The Town Council could not by the passage of the resolution subsequent to the judgment, authorizing the issue of the bonds, take away the right of these plaintiffs in error to seek a review of the judgment. But the resolution upon which the defendants in error rely for a dismissal of these proceedings was defective for not providing the method of calling in the outstanding bonds, which were to be refunded by the issuance of the bonds in question; and there is now no ordinance or law under which the outstanding bonds can be legally called in or redeemed. That can only be done through an ordinance providing therefor. (R. S. 1899, Sec. 2783; Sauer v. Gillette (Colo.), 78 P. 1068.)

The Legislature had never enacted any law requiring the Mayor to execute the certificate of legality upon municipal bonds. The only legislation under the provision of the constitution requiring such a certificate had reference to the duties of clerks of school districts and County Clerks, but did not refer to bonds of cities or towns. The town of Sheridan had no authority to legislate upon the subject and the Town Council could not by ordinance require the Mayor to sign such certificate; the constitution has vested that power in the Legislature, which could not be delegated to a municipality. Thus the relator was seeking to compel the Mayor to execute a certificate attesting the legality of the bonds when there was no law in existence requiring him to do so. As no bond would be valid under the constitutional provision requiring such certificate of legality to be endorsed thereon, unless there shall be such a certificate so indorsed, it would seem that there is no duty whatever imposed upon the Mayor to execute the bonds.

It is needless to urge that if the town had been made the only respondent, the court could have made no order which would have been binding upon the officers whose duty it would have been to sign the bonds. In our view, the only necessary parties in a suit of this kind would have been the Mayor, Clerk and Treasurer. The other respondents had nothing to do with the execution of the bonds, nor is there anything in the case which authorized their being joined as respondents. The cases which seem to hold that the writ of mandamus should be directed against the board in its corporate capacity, are not in point in the case at bar. This case involves not the duty of the town itself, but the duty of its officers in the execution of a financial obligation. As the Mayor and Council had determined that refunding bonds should be issued and a sale made, an ordinance was enacted, and the duty of executing the bonds then devolved upon the Mayor and Treasurer. The town as such had nothing further to do.

Mandamus is tried and determined in the same manner as other civil actions. And hence a judgment in mandamus stands on the same footing with the judgment of any other action in respect to appellate rights. (R. S. 1899, Sec. 4205; In re Epley (Okla.), 64 P. 18.)

An action of mandamus will abate where the term of office of the officers against whom the writ is directed expires before the duty is performed. (State v. Board (Mont.), 79 P. 402.) And the term of office of the Mayor and Clerk in the case at bar may expire before the bonds can be executed, and will expire unless they are re-elected at an election soon to occur. It would seem, therefore, that this court may be compelled to reverse the decision of the lower court and direct the dismissal of the action if the individuals now serving as Mayor and Clerk shall be succeeded by other persons. The Mayor and Clerk have an appealable interest in the case. (People v. Guggenheimer, 61 N.Y.S. 961; Chalk v. White (Wash.), 29 P. 979.)

If the contract in the case at bar upon which the right of relators is based is illegal, then the Mayor and Clerk should not be required to sign the bonds in pursuance of said contract. The Mayor under our statutes relating to the refunding of bonds has a co-ordinate power with the Council, and he cannot, therefore, be controlled by mandamus unless he assents to the issuance of the bonds. It follows, therefore, that a writ directed against the town would not bind the Mayor, and the Town Council could not by its own act require the Mayor to assent to the issuance of the bonds. (R. S. 1899, Secs. 1442, 1719, 1724; 1 Smith Mun. Corp., Sec. 290; 1 Dillon Mun. Corp. (4th Ed.), Sec. 273; Saxton v. Beach, 50 Mo. 448; Saxton v. St. Joe, 60 Mo. 153.)

POTTER, CHIEF JUSTICE. BEARD, J., concurs. VAN ORSDEL, J., did not sit.

OPINION

POTTER, CHIEF JUSTICE.

This was a suit in mandamus brought in the District Court in the name of the State on the relation of the First National Bank of Chicago to compel the issuance and delivery to the relator of the refunding water bonds of the town of Sheridan to the amount of seventy-five thousand dollars, of the denomination of five hundred dollars each, bearing interest at five per cent per annum, and payable in thirty years after their date, but redeemable at the option of the town in ten years, in accordance with an ordinance of said town enacted June 15, 1903, providing for the issuance of such bonds for the purpose of redeeming and refunding the same amount of outstanding water bonds issued in 1893, which outstanding bonds became redeemable according to their terms on August 1, 1903. The relator claimed a right to the relief sought by virtue of an alleged contract between it and the corporate authorities of the town made June 18, 1904, as the result of a proposal of the relator, at the solicitation of the town authorities, to purchase the bonds at par, and an acceptance of such proposal.

The Town of Sheridan, Alfred Diefenderfer as Mayor, J. F. Hoop as Clerk, G. T. Stahl as Treasurer, and the individual members of the Board of Trustees or Council of the town, were joined as defendants, and an alternative writ was issued returnable September 3, 1904, the suit having been commenced August 9 1904. The answer contained a general denial of the allegations of the petition respecting the contract relied on by the relator and the duties of the respective town officers to issue and deliver said bonds, or cause the same to be...