Eaton v. Glindeman

• Citation: 195 P. 90,33 Idaho 389
• Court: United States State Supreme Court of Idaho
• Decision Date: 19 January 1921
• Parties: ED. F. EATON, Plaintiff, v. H. P. GLINDEMAN, Mayor of the City of Coeur d'Alene, Defendant

195 P. 90

33 Idaho 389

ED. F. EATON, Plaintiff, v. H. P. GLINDEMAN, Mayor of the City of Coeur d'Alene, Defendant

Supreme Court of Idaho

January 19, 1921

Original application for writ of mandate. Denied.

Writ denied. Costs awarded to defendant.

Fred D Crane, for Petitioner.

The power of a city council to proceed under the provisions of C S., sec. 4056, has been upheld in the case of Hickey v City of Nampa, 22 Idaho 41, 124 P. 280.

Webster defines casualty as "that which comes without design or without being foreseen, a contingency." 6 Cyc. 701 defines casualty as "inevitable accident, event not to be foreseen or guarded against." Bouvier defines accident as "an event which under the circumstances is unusual and unexpected to the person to whom it happened." Bouvier defines casualty as "inevitable accident. Unforeseen circumstances which should be guarded against by human agency and in which man takes no part."

In the ordinary sense the term "casualty" is synonymous with the terms "inevitable accident" or "act of God." (Polack v. Pioche, 35 Cal. 416, 95 Am. Dec. 115.)

R. D. Leeper, for Defendant.

BUDGE, J. Rice, C. J., McCarthy, Dunn and Lee, JJ., concur.

OPINION

BUDGE, J.

This is an original application to this court for a writ of mandate to require the defendant as mayor of the city of Coeur d'Alene to borrow and expend money for rebuilding a wharf owned by the city, and situated at the south end of First Street.

An alternative writ was issued and an answer filed thereto. The facts, which are stipulated, are briefly as follows:

The wharf is used as a public landing place for passengers and freight; plaintiff, who is a resident of Coeur d'Alene, is the owner of a small passenger boat plying on the lake for hire, makes daily use of the wharf in conducting his business, and if the wharf is closed he will be deprived of a landing place. Prior to the enactment of their annual appropriation bill on June 14, 1920, the mayor and city council inspected the wharf and concluded that it would be possible to maintain it during the fiscal year in a condition for customary use by means of piecemeal repairs, but within the past three months the wharf has gone to pieces to such an extent as to render its further use by the public impossible without immediate repair of the whole thereof. The wharf is constructed of common red fir and tamarack planks, which have rotted from the inside outward. An estimate in the sum of $ 2,500 has been obtained as the probable cost of such repair.

The council in regular session on December 13, 1920, by a two-thirds vote of its members, passed a resolution reciting the condition of the wharf, that it was necessary to close it to public travel, that an emergency existed, that the necessity for repairing the wharf was due to a casualty or accident occurring after the annual appropriation for the fiscal year of 1920-21 had been made by the council, and, in order that the same be placed in a serviceable condition, authorizing and directing the mayor to negotiate a loan on behalf of the municipality and to sign evidence of indebtedness as mayor, for the purpose of obtaining the necessary funds, which he refuses to do.

It is contended by plaintiff that the condition of the wharf is due to a casualty within the meaning of the proviso of C. S., sec. 4056; that it was, therefore, within the power of the council to adopt the resolution heretofore referred to, and the duty of the mayor to comply therewith. On the other hand, defendant insists that the condition of the wharf is not the result of a casualty, and that the action of the council was, therefore, without authority in law.

Sec. 4056, supra , provides:

"The mayor and council . . . . shall have no power to appropriate issue or draw any order or warrant on the treasurer for money unless the same has been appropriated or ordered by ordinance, or the claim for the payment of which such order or warrant is issued, has been allowed according to the provisions of this chapter, and appropriations for the class or object out of which such claim is payable has been made as provided in section 4053. Neither the city council nor any department or officer of the corporation, shall add to the corporation expenditures in any one year anything over and above the amount provided for in the annual appropriation bill for the year, except as herein otherwise specially provided; and no expenditures for an improvement to be paid for out of the general fund of the corporation shall...