Mandan News v. Henke

• Decision Date: 13 October 1921
• Citation: 184 N.W. 991,48 N.D. 402
• Parties: MANDAN NEWS v. HENKE, President of Board of City Com'rs, et al.
• Court: North Dakota Supreme Court

48 N.D. 402

184 N.W. 991

MANDAN NEWS

v.HENKE, President of Board of City Com'rs, et al.

Supreme Court of North Dakota.

Oct. 13, 1921.

Syllabus by the Court.

Plaintiff brought an action of mandamus to compel defendants to issue to it certain warrants drawn on the general funds of the city of Mandan, they having theretofore declined to issue such warrants, but offered to issue warrants drawn on the special street lighting fund, claiming that the proper one against which the warrants should be drawn.

The court declined to issue the writ of mandamus, and for reasons stated in the opinion, it is held, its refusal to do so was not error.

The court did not err in granting judgment in favor of defendants.

Appeal from District Court, Morton County; H. L. Berry, Judge.

Application by the Mandan News for a writ of mandamus against H. L. Henke, as President of the Board of City Commissioners, and W. H. Seitz, as City Auditor of the City of Mandan, N. D. Writ refused and action dismissed, and the plaintiff appeals. Affirmed.Charles L. Crum and T. J. Krause, both of Mandan, for appellant.

L. H. Connolly, of Mandan, for respondents.

GRACE, C. J.

This action is one where the plaintiff sought to procure the district court of Morton county to issue a peremptory writ of mandamus against the president of the board of city commissioners and the city auditor of the city of Mandan, to compel them to issue warrants for the amounts hereinafter mentioned against the general funds of the city.

The case was tried by the court. It refused to issue the writ, and dismissed the action.

[1] The material facts are as follows: During the year 1919 and 1920 the city of Mandan installed a special system of street lighting, under section 3745 of the Compiled Laws of North Dakota of 1913, as amended by chapter 69 of the Session Laws of 1915. A special street lighting district and a special assessment fund for said district were created. The plaintiff published the resolutions in connection therewith, and certain notices for bids. At the time of these publications, no special fund had been provided, the specialstreet lighting system not having been at this time fully established. At the time these publications were made, no question was raised about the method of paying the printer for the publication of them. Subsequently the street lighting system was established in accordance with the laws above mentioned, and the city made contracts for the installation of the lighting system. The commission levied special assessments upon the property within the improvement district, subject to levy for the cost of the lighting system, and afterward plaintiff published the special assessment list, giving two publications thereof. It presented two bills to the city: One for $280.72, which was allowed November 8, 1920; the other for $292.16, which was allowed December 6, 1920. At the time they were allowed, the city had made provision for a fund, designated street lighting district No. 1 fund of the city of Mandan, N. D.

After the bill for $280.72 had been allowed by the city commissioners, the defendants issued a warrant for that sum drawn on the special street lighting fund. This was handed to Mr. Roth, vice president of the board of directors of the plaintiff corporation. At the time he received it he did not examine it, but soon afterward did, and, on finding that it was drawn on the special street lighting fund, returned it to the city auditor and informed him that the plaintiff refused to accept it, because it was not drawn on the general fund. The auditor offered plaintiff warrants drawn on the special street lighting fund, which offer was refused, and warrants on the general fund demanded.

Chapter 69 of the Laws of 1915, supra, provide in part as follows:

“If the owners of the majority of the property abutting street or streets where said lighting system is to be installed, shall not within ten days after the last publication of said notice...