Henning v. City of Casper

• Decision Date: 12 June 1936
• Docket Number: 1905
• Citation: 57 P.2d 1264,50 Wyo. 1
• Parties: HENNING v. CITY OF CASPER
• Court: Wyoming Supreme Court

57 P.2d 1264

50 Wyo. 1

HENNING v. CITY OF CASPER

No. 1905

Supreme Court of Wyoming

June 12, 1936

Rehearing denied November 24, 1936. See 62 P.2d 304, Reported at: 50 Wyo. 1 at 38. [Copyrighted Material Omitted]

APPEAL from the District Court, Sheridan County; SAM M. THOMPSON Judge.

Action by W. F. Henning against the City of Casper, a municipal corporation, to recover a personal judgment for the sum of $ 80,760.55 and interest, upon certain improvement bonds issued to him and unpaid. The defendant filed a demurrer which was sustained and from a judgment thereon, the plaintiff has appealed. Rehearing denied November 24, 1936. See 62 P.2d 304.

Reversed and remanded.

For the appellant, there were briefs by R. R. Rose and L. H. Sennett of Casper and oral argument by Messrs, Rose and Sennett.

The bonds were void and the consideration having failed, the City is bound to return the money paid for the bonds. Marsh v. Board of Supervisors, 19 L.Ed. 1040; Chapman v. Commissioners, 27 L.Ed. 378; Waitz v. Ormsby, (Nev.) 33 P. 376; Bank v. Dickerman, 40 P. 698; Paul v. Kenosha, (Wis.) 94 Am. Dec. 598; Bank v. Village, (Minn.) 43 L.R.A. (L.R.A.) 84; Florida v. Greer, (Fla.) 37 A. L. R. 1298; Hitchcock v. Galveston, 24 L.Ed. 659; Bank v. City, 49 F. 721; Luther v. Wheeler, 4 L.R.A. (L.R.A.) 746; Pimental v. City, (Cal.) 7 P. 361; Read v. City, 27 L.Ed. 414; Henderson v. Redman, (Ky.) 7 A. L. R. 346; City v. Wood, 26 L.Ed. 153; Bluthenthal v. Town of Headland, 90 A. S. R. 905; Hoag v. Town of Greenwich, (N. Y.) 30 N.E. 842. Recovery may be had as for money had and received, Allen v. Intendant, (Ala.) 9 L.R.A. 487, or upon an implied obligation. Miles v. Holt County, 27 L.R.A. (L.R.A.) 1130. The bonds were issued under Chapter 120 of the Laws of 1915. There was no authority for including in the bonds, claimed to have been issued under the 1909 law, the language appearing in the 1915 law with reference to the payment of the bonds out of a particular fund. The language of the bonds themselves and of the statutes is such as to have no binding effect under the circumstances of this case, as the provisions can only apply to valid bonds. Iowa Pipe Company v. Callanan, 67 L.R.A. 408; Fort Dodge Electric Company v. City of Fort Dodge, (Iowa) 89 N.W. 7; Polk v. State, 69 Iowa 24, 28 N.W. 416. The city expressly guaranteed their validity. Bank v. City of Portland, 41 A. S. R. 854. The city was obligated to create a valid assessment. Kirschner v. City of Cincinnati, 10 Ohio Dec. 288; Maher v. City, 38 Ill. 266; City v. People, 56 Ill. 327; City v. Mills, (Kan.) 25 P. 176; Louisville v. Hyatt, 5 B. Mon. 199; Paving Company v. City, 72 F. 336, (C. C. A. 8); Dennis v. City, (Ore.) 157 P. 799; Freese v. City, (S. D.) 158 N.W. 1013; Lumber Company v. City, (N. D.) 96 N.W. 357; Barber Paving Company v. Harrisburg, 29 L.R.A. 401; Bank v. State, (Iowa) 28 N.W. 416; Yamker v. Des Moines, (Ia.) 101 N.W. 1129; Bill v. City of Denver, 29 F. 344; Gilcrest & Company v. City of Des Moines, (Ia.) 131 N.W. 776; Fisher v. St. Louis, 44 Mo. 482; Folz v. Cincinnati, 12 Ohio Dec. Reprint, 433; Gable v. Altoona, (Pa.) 49 A. 367; District v. Lyon, 161 U.S. 200, 40 L.Ed. 672; Cole v. Shreveport, 41 La. Ann. 839, 6 So. 690. Plaintiff is not required to resort to reassessment before instituting action against the city. The bonds, which the defendant represented, and the plaintiff supposed, to be perfectly good, proved, in fact, to be worthless, and the plaintiff received nothing whatever for the money paid into the City Treasury. When it repays the money, it will have lost nothing. Plaintiff stated a cause of action in his petition.

For the respondent, there was a brief by Hagens & Wehrli and E. E. Murane of Casper, and oral argument by Mr. Wm. J. Wehrli.

The bonds involved in the fourth, fifth and sixth causes of action recite that they were issued under Chapter 120 of the Session Laws of Wyoming, 1915. Plaintiff's first cause of action seems contradictory as to what statute sewer bonds of District No. 2B were issued under, since the statutes of 1909 and 1915 are both referred to. The bond act of 1915 expressly provides that bonds issued thereunder shall have no claim against the city, but shall be confined to assessments made therefor. Respondent cannot be subjected to a general personal judgment. Sections 2012, 2017, Wyo. C. S. 1920; Pontiac v. Talbot Paving Company, 94 F. 65; Dillon Mun. Corp. Vol. 1 (4th Ed.), Sec. 482; Broad v. City of Moscow, (Ida.) 99 P. 101; Farrell v. City of Chicago, (Ill.) 65 N.E. 103; Village v. Robinson, (Ill.) 65 N.E. 104; City v. Foster, (Ill.) 69 N.E. 783; Conway v. City, (Ill.) 86 N.E. 619; Price v. City of Elgin, 100 N.E. 133; Town v. Bank, (Ind.) 87 N.E. 984; Cotter v. City, (Mo.) 158 S.W. 52; Wheeler v. City, (Mo.) 49 S.W. 1088; City v. Company, (Okla.) 161 P. 1092; Hall v. City, (Wisc.) 2 N.W. 279; Zietusch v. City, (Wisc.) 13 N.W. 227; Roter v. City, (Wisc.) 91 N.W. 651; Affeld v. City of Detroit, (Mich.) 71 N.W. 151; Capitol Heights v. Steiner, (Ala.) 107 So. 451; Gagnon v. Butte, (Mont.) 243 P. 1085; Moore v. City of Nampa, (C. C. A. 9) 18 F.2d 860; Paving Company v. City, (Okla.) 13 P.2d 94; State v. Armstrong, (Okla.) 13 P.2d 198; O. S. L. R. Co. v. Berg, (Ida.) 16 P.2d 373. In all of these later Illinois cases, general recovery against the municipality has been denied. Farrell v. City, supra; Village v. Robinson, supra; City v. Foster, supra; Conway v. City, supra; Price v. City, supra. Other cases in which the statutes involved are practically identical with those in the case at bar are: Broad v. City of Moscow, supra; Moore v. Nampa, supra; Farrell v. City, supra; City v. Foster, supra. Appellant cites a number of cases in which recovery was allowed. A thorough examination of these cases will disclose that with the possible exception of two Illinois cases, hereinabove referred to, they involve solely contractual prohibitions against the general municipal liability. We believe that the probable weight of authority, even in those cases is against recovery. Bank v. Spokane, (Wash.) 49 P. 542; Thomas v. City of Olympia, 21 P. 191; Village v. Robinson, (Ill.) 65 N.E. 104. Other cases involving only contractual prohibition and denying recovery are: People v. Mayor, (N. Y.) 38 N.E. 1006; Pratt v. City, (Wash.) 189 P. 565; Bank v. City, (Iowa) 231 N.W. 705; Connelly v. City, (Cal.) 33 P. 1109. A great many cases cited by counsel for plaintiff are old, and we find there has been a decided trend toward absolving municipalities from liability in the more recent decisions. We invite comparison of these early cases with later cases in the same jurisdictions denying recovery. The Kentucky cases seem to be in hopeless conflict. In Carruthers v. City of Astoria, (Ore.) 143 P. 899, a statutory prohibition was involved and recovery denied. 238 F. 827. The court in denying liability made the distinction between the Oregon and Iowa cases. Citizens Bank v. Spencer, 101 N.W. 643. Recovery on the theory of implied contract as for money had and received was denied. The fact that reassessment can not be made does not authorize recovery. Trust Company v. Spokane, (Wash.) 53 P. 1104; State v. Hastings, (Wash.) 207 P. 23; City v. Foster, (Ill.) 69 N.E. 783. The municipality cannot make voluntary payment. State v. Hastings, supra; State v. Tanner, (Wash.) 88 P. 321; McBean v. City of San Bernardino, (Cal.) 31 P. 49; Conlin v. City, (Cal.) 33 P. 753; Pratt v. City, (Wash.) 189 P. 565; State v. Armstrong, (Okla.) 13 P.2d 198. The city is not liable even though improvement may have been paid for from general funds in the first instance. Montague Company v. Town, 199 P. 605; Pontiac v. Talbot Paving Company, 94 F. 65; Cotter v. City, (Mo.) 158 S.W. 52; Town v. Bank, 87 N.E. 984. Recitals in bonds cannot defeat the purpose of statutes negativing general municipal liability. Moore v. Nampa, 276 U.S. 536; Town v. Bank, 89 N.E. 911; Company v. City, (Wash.) 54 P. 935; State v. City of Tacoma, (Wash.) 166 P. 66; Severns Company v. Oklahoma City, (Okla.) 13 P.2d 94. Recovery is denied on implied contract where the express contract was made without authority or is expressly or impliedly forbidden. A municipal corporation has no authority to borrow money except as granted by statute. 44 C. J. 1144. No implied liability can arise in the face of restrictive statutes. Tobin v. Town Council, 45 Wyo. 219; Morton v. City, 41 F. 582; McCurdy v. County, (Mich.) 118 N.W. 625; City v. Swackhamer, 37 N.J.L. 191; Blutenthal v. Town of Headland, (Ala.) 31 So. 87; Reams v. Cooley, (Calif.) 152 P. 293; Trust Company v. Town of Ryegate, 61 F.2d 14; Rubber Company v. Tulsa, 229 P. 771; Bank v. Cornelius, 185 P. 97. Every argument made by plaintiff for recovery in this case has been decided adversely to plaintiff by the opinion in Tobin v. Town Council, supra.

R. R. Rose and L. H. Sennett in reply.

The 1915 law neither admitted or repealed the law of 1909. The act of 1915 covered surface improvements and expressly excludes sanitary sewers. The authorities cited by defendant are not applicable. Cities of the first class have power to provide for drains or sewers and the expense of such shall be paid from general funds, unless special assessments are made. Section 1831, W. C. S. 1920. The statutes of Illinois differ from those of Wyoming, hence the Illinois cases are not in point. The citations from Missouri and Oklahoma are readily distinguishable from the facts and the Wisconsin statutes also differs from Wyoming. Moore v. City of Nampa, 18 F.2d 860, 72 L.Ed. 688 was a tort action for failure to provide a special assessment fund. The Oregon case of Carruthers v. City of Astoria cited by respondent's counsel is against their contention. The vital point of distinction which counsel apparently...