McClendon v. State

• Decision Date: 28 May 1917
• Docket Number: 11
• Citation: 195 S.W. 686,129 Ark. 286
• Parties: MCCLENDON v. STATE EX REL
• Court: Arkansas Supreme Court

195 S.W. 686

129 Ark. 286

MCCLENDON v. STATE EX REL

No. 11

Supreme Court of Arkansas

May 28, 1917

Appeal from Garland Circuit Court; Scott Wood, Judge; affirmed.

Order affirmed.

Murphy & McHaney, for appellant.

1. Mandamus will not lie to compel the performance of a ministerial duty, where any discretion upon the part of the officer is involved, nor where there is any other remedy. 118 Ark. 166.

2. The ordinance was not legally passed over the mayor's veto. Housley and Ledwidge were not residents of the ward they claimed to represent as aldermen. Kirby's Digest §§ 5597-8, 5602; 82 Ark. 529; 66 Id. 201; 68 Id. 555; 80 Id. 369.

3. The city council had no authority to make the contract, or pass the ordinance for making it, while the district was still in existence and the improvement still in the hands of the commissioners. 71 Ark. 4; 94 Id. 49; 55 Id 148; Kirby's Digest, § 5643. The district had never been turned over to the city. 81 Ark. 599. The movement should have been initiated by the board of public affairs and the contract let to the lowest bidder. 81 Id. 599.

Martin. Wootton & Martin, for appellees.

1. Mandamus is the proper remedy. The mayor's duty was purely ministerial. The ordinance had passed and he had no discretion as to the performance of a legal duty. 64 N.Y 499; 132 N.Y.S. 620; 64 A. 68; 112 Ga. 160; 131 Id 614; 148 Pa.St. 463; 68 S.W. 15; 26 Cyc. 280-1, 358; 19 Am. & Eng. Enc. Law (2 ed.) 821.

2. It may be true that the council might have approved the contract without the necessity of the signature of the mayor, but it provided for the signature of the mayor, and it was his duty to obey the law, and no discretion was left in him after the passage of the ordinance. 64 A. 68; 3 McQuillan on Mun. Corp., § 1179. The council might have provided a different method, but they did not; a specific mode was prescribed and the law is binding on all, including the mayor.

3. The ordinance was legally passed. Housley and Ledwidge were at least de facto aldermen, and their acts are binding as to third persons and the public. 190 S.W. 427; 55 Ark. 81; 52 Id. 356; 43 Id. 243; 48 L. R. A. 412; 94 F. 457; 136 S.W. 1028; 122 Mass. 445, etc.

4. The council had authority to pass the ordinance. 113 (Ill.) N.E. 703; 97 S.W. 1; 60 L. R. A. 768; 110 U.S. 212; 52 P. 28; 92 Wis. 456; 98 Cal. 10. The paving company was not liable on its warranty to repair the streets and a new contract was necessary. Both the city and the commissioners joined in the settlement and had the power to make the compromise settlement. 5 Dill. 498; 75 Neb. 502; 145 F. 753; 28 Cyc. 641; 109 U.S. 221, and many others.

5. The city council, and not the Board of Public Affairs, had the power to act. Kirby & Castle's Digest, §§ 6670, 6572, 6734, 6483; 118 Ark. 166, etc.

OPINION

SMITH, J.

In 1905 an improvement district was formed for the purpose of paving Central avenue and other streets in the city of Hot Springs. On April 2, 1906, a contract was entered into between the improvement district and the Barber Asphalt Paving Company to pave said streets with asphalt. The paving contract contained a clause whereby the paving company agreed to make certain repairs for a period of ten years after the completion of its contract. The streets were paved, and after a few years' use became out of repair, and the paving company was called upon to make the necessary repairs, which it declined to do upon the ground that it was under no duty to make the repairs which had become necessary.

This controversy was settled by an agreement on the part of the paving company to pay the sum of $ 7,500 in cash, in consideration of which payment a release was to be executed by both the city and the improvement district; but a controversy arose between the city officials and the commissioners of the improvement district over the disposition of this money, and the required release was never executed and the money was never paid to either--the city or the improvement district. Failing to adjust the matter, a suit was brought by the city against the paving company and the surety on its bond, in which judgment was asked for $ 30,000. An agreement was reached for the settlement of this litigation, pursuant to which an ordinance was passed, which recited the agreement of the paving company to do certain resurfacing and other repair work in consideration of a sum of money to be paid by the city. This ordinance was passed to effectuate the settlement of the differences between the paving company and the city, and authorized and directed the mayor, in the name of the city, to sign the contract agreed upon. This ordinance was vetoed by the mayor, and afterwards passed by a vote of eight in favor of the ordinance to two against it, two members of the council not being present at the time.

After the passage of the ordinance over the veto of the mayor, that officer was called upon to execute the contract of settlement there authorized; but he declined so to do. Whereupon a proper petition for mandamus was filed against him, praying that he be required to do so. The relief prayed was resisted upon the following grounds:

1. That the signing of said contract on the part of the mayor involves the exercise of discretion.

2. That appellees have another remedy.

3. That the ordinance providing the terms of the contract was not legally passed and is therefore not a valid and binding ordinance of the city council of said city.

4. That the streets were in the hands of the commissioners of the improvement district and that the city council had no authority to pass the ordinance providing for this contract or to require the mayor to sign it.

Appellant argues, and appellees concede, that mandamus will not lie to control the discretion of an officer where the performance of an official duty involves an exercise of discretion. And the concession is likewise made that mandamus will not lie where the party applying therefor has another and an adequate remedy.

Appellant says that it is now sought, in effect, to compel him to approve an ordinance which, in the exercise of his discretion, he saw proper to veto. We think, however, that such is not the case, for after the passage of the ordinance the discretion of the mayor ceased. Once a valid ordinance is passed, it becomes binding upon all persons alike, and if it imposes upon the mayor, or other officer of the city, any duty which the council has the authority to impose, then the obligation to perform that duty becomes binding. The mayor had a discretion in the approval of the ordinance, and this discretion he exercised; but, upon its passage notwithstanding his veto, the mayor became charged with the performance of a mere ministerial duty, and no officer has a discretion to obey, or to refuse to obey, a law requiring the performance of a mere ministerial duty.

It is insisted by learned counsel for appellant that "the contract itself being a part of the ordinance which the mayor vetoed, he can not now be compelled, nor can they ask aid of the court to compel him, to do that which he has already exercised his discretion in refusing to do. In vetoing the ordinance, the mayor vetoed the contract as well, and now to require him to sign and approve the contract is an indirect way of compelling him to approve the ordinance providing for the contract."

It is further insisted that if the council had authority to pass this ordinance over the mayor's veto, it had the power to approve the contract without the necessity of the mayor's signature, and that appellees are seeking to compel appellant to do a thing which the city could have done, and can yet do, itself.

We have seen, however, that this proceeding is not intended to control the discretion of the mayor, but is intended to compel the performance of a duty imposed by an ordinance which was passed over his veto. The mayor would have no more discretion, and does not have any more discretion, in obeying an ordinance passed over his veto,...