Fox v. Trinidad Waterworks Co.

• Decision Date: 10 February 1896
• Citation: 7 Colo.App. 401,43 P. 1051
• Court: Colorado Court of Appeals
• Parties: FOX, Treasurer, v. TRINIDAD WATERWORKS CO. et al.

43 P. 1051

7 Colo.App. 401

FOX, Treasurer, v. TRINIDAD WATERWORKS CO. et al.

Court of Appeals of Colorado

February 10, 1896

Appeal from district court, Arapahoe county.

Two mandamus proceedings, consolidated and tried together,--one by the Trinidad Waterworks Company against John H. Fox treasurer of the city of Trinidad, Colo., and the other by the First National Bank of Central City, Colo., against the same defendant, to compel such treasurer to pay to such waterworks company and to such bank money on hand in a special fund for the purpose of paying city warrants held by them. From a judgment directing a writ to be issued addressed to defendant and to A.L. Branson, his successor in office commanding them and each of them to pay the warrants described in the alternative writs from money in such special fund in the order of their registration, Fox appeals. Reversed.

Joseph C. Helm and Everett Bell, for appellant.

Yeaman & Gove, for appellees.

BISSELL J.

The water supply of the city of Trinidad is furnished by the Trinidad waterworks. According to the usual practice of cities and waterworks companies, hydrants were placed at various points, and in other ways water was furnished for the use of the municipality. From time to time, the company rendered bills to the city, which were passed on by the common council, which issued warrants on the treasury in payment. Only two lots of warrants are involved in this litigation. There were 25, numbered from 5,896 to 5,920, for $500 each, issued in November, 1892, to the Trinidad Waterworks Company. This lot of warrants was turned over to F.D. Wight as security on some transaction between the company and other parties. There was another series, 7 in number, numbered from 6,144 to 6,150, issued in March, 1893 in liquidation of bills of the waterworks company rendered to the city, which were purchased by the First National Bank of Central City, and held by them at the time this litigation started. The warrants were presented for payment, and, there being no funds in the treasury, were properly indorsed to insure interest to the holder, and held until the latter part of 1894, when the holders demanded payment of the appellant Fox, who was then the city treasurer. At the time of the demand there was, in the treasury, $16,510.43, which was properly applicable to the liquidation of these claims. The treasurer refused payment. It seems there was some controversy between the waterworks company and the city, respecting the terms and the performance of the contract, which led to a suit by the city against the company to cancel the warrants. The city failed in the suit, and prosecuted a writ of error to the supreme court, which is now pending. The disagreement led the city administration to resist the payment of these claims until the question at issue between the city and the corporation should be finally determined, whereupon the First National Bank of Central City instituted proceedings by way of mandamus, recited the issuance of the warrants, their title, the demand for payment and the presence of funds in the treasury to pay the claims. About the same time, the waterworks company started similar proceedings on the 25 warrants which they held, alleging whatever was necessary to make out a case on paper. The proceedings were begun in Trinidad, but by stipulation both were removed to Arapahoe county, there consolidated, and tried as one suit. Evidence was introduced to show the rendition of the bills to the city, their acceptance and allowance by the city government, the order of the council directing the warrants to issue, the issue, and presentation for payment, with the requisite proof respecting the condition of the city treasury. It was clearly shown there was money in the treasury applicable to the payment of such claims, and the treasurer, Fox, turned over to his successor $17,818.24.

It will be assumed nothing was lacking in the proof to show the petitioners' right to a writ, and the judgment directing it would, of necessity, be affirmed, had it been duly entered against the proper parties. The trial disclosed the fact that Fox was not then city treasurer. He held the office at the time of the demand and the commencement of the proceeding. The relators, however, put him on the stand, and, so far as might be, by that kind of testimony, proved that he had gone out of office on the 24th of April preceding, and had been succeeded by A.L. Branson, who was, on the 7th of May, 1895 the date of the hearing, then city treasurer of Trinidad. Fox testified to his proceedings when he went out of office, which included the turning over to his successor, Branson, of the specific fund which was alleged to be applicable to the payment of these claims. The only reason which he gives for refusing to pay the warrants is found in his statement of the policy of the city government, which was to refuse to pay any of the waterworks company's claims until the validity of these warrants should be finally settled by the supreme court in the litigation which was then pending. On the conclusion of the testimony, the court, being sufficiently advised, found the facts to be as stated in the petitions. There was likewise a finding that Fox's term of office as treasurer had expired on the 23d of April, 1895, and that he had been succeeded by Branson, who was, in fact, the city treasurer of Trinidad at the time the judgment was rendered, and that he then held all the moneys in the water fund of the city. On this basis, the court rendered judgment that a peremptory writ be issued, addressed to the defendant, John H. Fox, and to his successor, A.L. Branson, commanding them, and each of them, to pay the warrants described in the alternative writs from money in the water fund of the city in the order of their registration. No attempt was made to bring Branson into the litigation, notwithstanding it clearly appeared, on the hearing, that Fox was out of office, and Branson in, and in custody of the particular fund which was sought to be reached by these proceedings. The necessity of some judgment...