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

• Decision Date: 06 January 1906
• Citation: 83 P. 591,14 Wyo. 302
• Parties: DIEFENDERFER ET AL. v. STATE EX REL. FIRST NATIONAL BANK OF CHICAGO, ILL., ET AL
• Court: Wyoming Supreme Court

83 P. 591

14 Wyo. 302

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

Supreme Court of Wyoming

January 6, 1906

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

On rehearing. For former opinion and report, see 13 Wyo. 387 (80 P. 667).

Judgment affirmed or proceeding in error dismissed.

E. E Enterline, W. E. Mullen and J. F. Hoop, for plaintiffs in error, on petition for rehearing.

The resolution of the Town Council adopted in November, 1904, did not provide specifically for a notice calling in the outstanding bonds, as seems to be supposed by the court in the opinion heretofore delivered. It merely stated that notice should be given according to ordinance, and no ordinance existed regulating the matter. The purchase price of the bonds was not in fact deposited by the relator in the New York Bank to the credit of the town, but to the relator's own credit and for its own purposes. It took up the bonds not for the town, but for itself.

The November resolution of the Council was not binding upon the town officers. Notice of the proposed redemption of the outstanding bonds could not be provided for by resolution. That must be done by ordinance. (Rev. Stat. 1899, Secs 1723-1724.) Where the statute uses the term "ordinance" in directing the method by which municipal powers may be exercised, it is to be construed in its legal signification; and a resolution is not sufficient where the act is required to be done by an ordinance. (Horr & Bemis, Mun. Pol. Ordinances, Sec. 210; Patterson v. Barnet, 46 N. J., 62; Cross v. Morristown, 18 N.J. Eq. 305; Nashville v. Toney, 10 B. J. Lea, 643; Bryan v. Page, 51 Tex. 532; Delphi v. Evans, 36 Ind. 90; Sauer v. Gillette, 75 P. 1068; Backhaus v. People, 87 Ill.App. 173; People v. Mount, 87 Ill.App. 194; West Point ex rel., 1 Mo. App., 563, 62 Mo. App., 647; San Antonio v. Micklejohn (Tex.), 33 S.W. 735; Shimer v. Inhab. of Ph. (N. J.), 33 A. 832; Newman v. Emporia, 32 Kan. 456 (2 P. 815); Hunt v. Lambertville, 45 N.J.L. 279; City of Girardeau v. Tougen, 30 Mo. App., 51; Martin v. City of Oskaloosa (Ia.), 102 N.W. 529.) Under the town charter, every ordinance, unless in case of emergency, must be published at least ten days before the same shall take effect. (Rev. Stat. 1899, Sec. 1454.) That provision is mandatory. Even if it should be conceded that the resolution should be construed as an ordinance, it is not shown that any emergency existed, nor is it shown that the same was ever published as required by statute. The resolution, therefore, adopted in November, 1904, prescribing the form of bond and containing other directions, was not binding upon the mayor and the other officers it sought to direct. (O'Hare v. Town, 7 N. D., 279; Stillwater v. Mossis (Okl., 1893), 33 P. 1024; Bank v. Granada, 44 F. 262.)

We insist that the court is in error in holding that the resolution of November, 1904, cured all defects, if any existed theretofore in the sale of the bonds. The review of the judgment could not be prevented by the enactment of a resolution in which it is sought to compel the performance of certain acts and duties by the mayor and clerk, unless such resolution was enacted with the same formality as an ordinance, and that was not done.

It does violence to the constitution to hold that a municipality can by ordinance designate the officer to sign the certificate of legality upon the bonds. The provision in the constitution that the officer must be designated by law does not mean that a municipality can legislate upon that subject. An ordinance is not in the constitutional sense a public law. (McInerney v. Denver (Colo.), 29 P. 516.) The Legislature could not delegate to municipal corporations the power to determine what officer should endorse the certificate, because the constitution does not authorize it. (Anderson v. Ins. Co., 50 Am. St. 400.)

There is no County Auditor in this state, consequently legislation is required by the Legislature designating some officer who shall endorse the certificate required by the constitution for counties and political subdivisions of the state. The first State Legislature, fully recognizing that legislation was required, enacted a law for counties and school districts. (Rev. Stat. 1899, Secs. 1215 and 560. No provision was made for municipalities concerning the constitutional provision in question until the last session of the Legislature. (Ch. 94, Laws of 1905.) We insist that the Town Council could not issue any bonds until after the enactment of the recent statute. The certificate of the mayor, which was authorized by ordinance, was not sufficient to validate the bonds, and after the enactment of the statute the certificate of the mayor would simply be superfluous. It could not add anything to the validity of the bonds.

Bonds cannot be signed by officers whose terms have expired, nor can such bonds be signed by their successors in office and dated at a time when not in office. (Coler v. Cleburne, 131 U.S. 162; Anthony v. Jasper County, 101 U.S. 693; Leham v. City of Santiago, 83 F. 669.) It is clear, therefore, that the bonds cannot be issued in this action. If issued, they would be absolutely invalid, even if it should be conceded that the judgment is correct. Counsel also cited generally the following authorities: Kent v. Dana, 100 F. 562; Lexington v. Bank, 75 Miss. 10; Flagg v. Palmyra, 33 Mo. 440; State v. Moore, 46 Neb. 590; Moler v. Galveston, 23 Tex. Civ. App., 693; Yesler v. Seattle, 1 Wash., 308; Chickaming v. Carpenter, 106 U.S. 666.

Metz & Sackett and S. T. Corn, for defendant in error, First National Bank of Chicago.

(No additional brief was filed on behalf of the defendants in error on the petition for rehearing. But the court heard oral arguments of counsel representing both parties.)

POTTER, CHIEF JUSTICE. BEARD, J., and VAN ORSDEL, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

This is a suit in mandamus to compel the issuance and delivery of certain refunding bonds of the Town of Sheridan to the relator, the First National Bank of Chicago, in accordance with its accepted bid for their purchase, and pursuant to a town ordinance providing for such bonds. The suit was brought against the town, its mayor, clerk and treasurer, and the individual members of the Town Council. The defenses interposed by the several defendants were practically the same, and are set out in the former opinion. (80 P. 667.) They were not personal to the officers of the town, but were based upon the proposition that no duty or obligation rested upon the town toward the relator in respect to the bonds. The main issue presented by the answer was whether a valid contract had been entered into between the town and relator for the sale and purchase of the bonds. The trial court decided the cause in favor of the relator, and on November 15, 1904, entered judgment requiring the bonds to be issued and delivered to the relator, and to bear date January 1, 1905.

Shortly after the rendition of judgment the Town Council, over the veto of the mayor, adopted a resolution affirming the contract with the relator, and directing the issuance and delivery of the bonds to the relator bank in accordance with the contract and the judgment entered in this cause, and providing that the bonds be dated January 1, 1905, as required by the judgment. For the other particulars of that resolution we refer to the former opinion. Notwithstanding such resolution, the mayor, clerk and one member of the Council, on December 29, 1904, brought this proceeding in error to review and reverse said judgment, making the other defendants below parties here as defendants in error, together with the original plaintiff below. Upon the ground that, in consequence of the resolution aforesaid adopted subsequent to the judgment, the matter in issue had been practically settled between the interested parties, and that there had ceased to be any controversy between them, we sustained a motion to dismiss the proceeding in error. In doing so we gave our reasons at length and endeavored to show that neither the proposed bonds nor the contract for their sale to relator would be illegal, and, therefore, there was no ground for interfering with the judgment.

Within the time allowed by the rules a petition for rehearing was filed by the plaintiffs in error. By consent of parties, after the same had been argued, a rehearing was granted, in order that the motion to dismiss and the case itself might be submitted together. The motion and the cause upon the merits were thereupon submitted to the consideration of the court; the defendant in error, the bank, not waiving any point presented by its motion.

Upon reconsideration we entertain no doubt of the conclusion reached upon the previous hearing that every matter in controversy brought into the case by the pleadings and determined by the judgment, was put beyond further controversy, as against all the defendants below by the resolution of the Town Council to abide by the judgment and directing its officers to perform the mandate of the court in the premises. In addition to the authorities cited in the former opinion, we cite the following: Commissioners v. Sellew, 99 U.S. 624, 25 L.Ed. 333; Little v. Bowers, 134 U.S. 547, 33 L.Ed. 1016, 10 S.Ct. 620; Wash. & Idaho R. Co. v. Coeur D'Alene R. & N. Co., 160 U.S. 101, 40 L.Ed. 355, 16 S.Ct. 239; Thompson v. U.S. 103 U.S. 480, 26 L.Ed. 521. We regard it unnecessary to again generally discuss the questions considered in the former opinion. But as to one or two statements contained in that opinion counsel have most courteously, but persistently, continued to urge their inaccuracy or incorrectness. We deem it advisable, therefore, to refer to them briefly...