Oakman v. City of Eveleth
| Decision Date | 24 April 1925 |
| Docket Number | 24,672 |
| Citation | 203 N.W. 514,163 Minn. 100 |
| Parties | THEODORE OAKMAN v. CITY OF EVELETH AND OTHERS |
| Court | Minnesota Supreme Court |
Upon the relation of Theodore Oakman the district court for St Louis county granted its alternative writ of mandamus commanding the city of Eveleth, its councilmen and clerk, to call a special election for the purpose of submitting to a vote of the people a certain ordinance. Defendants appealed from an order overruling their demurrer to the petition and writ, Hughes, J., who certified the questions presented to be important and doubtful. Reversed.
Application for writ of mandamus to submit proposed city ordinance to electors.
1. An application for a writ of mandamus to compel a city council to submit a proposed ordinance to a vote of the people pursuant to a charter provision, will not be denied because the ordinance binds the city only, it being assumed that the parties are acting in good faith.
City may compromise pending litigation.
2. A taxpayer institutes a suit against former city officials to collect money for the city. The city failed to act. Yet the city may compromise and settle the pending litigation.
When city may compromise for less than amount of its judgment.
3. A municipality may compromise pending litigation at any time before final judgment. After final judgment a municipality may compromise and accept less than the full amount of the judgment where the debtor is not able to pay the full amount.
Limited power of electors of city of Eveleth to adopt ordinances.
4. Under the provisions of the home rule charter of the city of Eveleth the initiative power of the electors is limited to ordinances of general legislation and does not include administrative matters.
Ordinance for settlement of claims in litigation.
5. A proposed ordinance authorizing the city to settle claims involved in litigation against former officials is not legislative in character but involves a quasi judicial duty.
1. See Mandamus, 26 Cyc. p. 272.
2. See Municipal Corporations, 28 Cyc. p. 1756 (1926 Anno).
3. See Municipal Corporations, 28 Cyc. p. 1756.
4. See Municipal Corporations, 28 Cyc. p. 352 (1926 Anno).
5. See Judicial, 34 C.J. p. 1180, § 5; Municipal Corporations, 28 Cyc. p. 352 (1926 Anno).
John E. Manthey, for appellants.
George H. Spear, Fryberger, Fulton, Hoshour & Ziesmer and Boyle & Montague, for respondent.
A petition, subscribed by the necessary number of electors in the city of Eveleth, proposed an ordinance asking that the same be passed or submitted forthwith to a vote of the people. The proposed ordinance provided for a compromise of certain claims of the city against nine former city officials and their sureties. Such claims are now involved in three actions, brought by a taxpayer, for the benefit of the city and are now pending in this court and involve about $135,000. The ordinance is to authorize a full satisfaction and discharge upon payment of $15,000.The city council did not pass the ordinance. It did not submit it to a vote of the people, although 25 days elapsed.
An alternative writ of mandamus was issued by the district court upon relation of a taxpayer, requiring the council to proceed to call a special election for a vote of the people upon such ordinance, or show cause why they had not done so. Defendants demurred to the petition and writ on the ground that the facts therein stated did not constitute a cause of action. The trial court overruled the demurrer, but certified that the questions presented were important and doubtful. Defendants have appealed.
1. Mandamus will not be granted where it would not avail anything. Dunn., Dig. § 5759.It is said that this proposed ordinance is invalid, and that therefore the writ should not issue; and it is claimed that, if the ordinance is passed, it will bind the city only, and that by its terms its availability is optional to the defendants. We will assume that the petition is made in good faith and that the petitioners have sufficient reason to know that the settlement would be made if the city would join therein. At least we cannot assume, on demurrer, that the initiative movement is seeking a result that would be futile.
2. The actions are being prosecuted by a taxpayer. The city failed to act. The appellant now questions the right of the city to step in and settle the matter involved in the taxpayer's lawsuits. The determination in such actions binds other taxpayers the same as it binds the plaintiff therein, Driscoll v. Board of Co. Commrs. 161 Minn. 494, 201 N.W. 945, and cases cited. No other taxpayer could interfere by commencing another suit in the same cause of action. Note 49 L.R.A. (N.S.) 108. Neither can the city come in and successfully ask to have the action dismissed. State ex rel. Morrison v. City of Muskogee, 70 Okla. 19, 172 P. 796. We think, however, that where a city in good faith desires to compromise and settle pending litigation and may do so, the paramount public welfare demands that such settlement may not be hindered or thwarted by a single taxpayer, even though he be courageous in the cause of public justice. The responsibility for action or non-action in such matter must rest upon the public officials. If their action is not taken in good faith the plaintiff will have a remedy.
3. The power or authority of a municipality to settle and compromise pending litigation is challenged. Section 1, chapter 1, of the charter of Eveleth authorizes the city to sue and be sued. It would be a reflection upon justice to say that a city could sue and be sued, but that it must always carry the litigation to final judgment. The power to compromise grows out of and is incident to the power to sue and be sued. This power embraces the power to finish litigation, decide how far it shall be carried, and when and in what manner it may end. The litigation here involved includes one appeal to this court from a judgment in favor of the city and two other actions where the trial court has overruled demurrers to the complaints, but certified the questions as doubtful. It needs no authority to support the assertion that these three suits are now pending in this court. The fact that judgment was entered in the lower court from which an appeal has been taken does not exclude them from the field of pending litigation. 5 McQuillin, Mun. Corp. § 2479; Mills County v. Burlington & M.R. Co. 47 Iowa 66; 107 U.S. 557, 2 S.Ct. 654, 27 L.Ed. 578. Litigation is pending in the lower court after judgment is entered until time for appeal has expired when its correctness is not conceded. Agnew v. Brall, 124 Ill. 312, 16 N.E. 230. Pending litigation is a proper subject of compromise by a municipality. It may be compromised at any time before final judgment has been entered.
There are many authorities so holding. 5 McQuillin, Mun. Corp. § 2479; note 19 L.R.A. (N.S.) 320; Farnham v. City of Lincoln, 75 Neb. 502, 106 N.W. 666; Agnew v. Brall, 124 Ill. 312, 16 N.E. 230; Orleans County v. Bowen, 4 Lans. (N.Y.) 24; Mills County v. B. & M.R. Co. 47 Iowa 66; 107 U.S. 557, 2 S.Ct. 654, 27 L.Ed. 578; Clough v. Verrette, 79 N.H. 356, 109 A. 78; Smith v. Wilkinsburg Borough, 172 Pa. St. 121, 33 A. 371; City of San Antonio v. San Antonio St. Ry. Co. 22 Tex. Civ. App. 148, 54 S.W. 281; Washburn County v. Thompson, 99 Wis. 585, 75 N.W. 309; People v. Board of Supervisors, 27 Cal. 655; New Orleans v. L. & N.R. Co. 109 U.S. 221, 3 S.Ct. 144, 27 L.Ed. 916; Hine v. Stephens, 33 Conn. 497, 89 Am. Dec. 217; City of Logansport v. Dykeman, 116 Ind. 15, 17 N.E. 587; McKennie v. Charlottesville R. Co. 110 Va. 70, 65 S.E. 503, 18 Ann. Cas. 1027; State v. Davis, 11 S.D. 111, 75 N.W. 897, 74 Am. Dec. 780; Town of Petersburg v. Mappin, 14 Ill. 193; Gering v. School Dist. 76 Neb. 219, 107 N.W. 250; St. Louis, I.M. & S. Ry. Co. v. Anthony, 73 Mo. 431; Multnomah County v. Dekum, 51 Ore. 83, 93 P. 821, 16 Ann. Cas. 933; Paret v. City of Bayonne, 39 N.J. Law, 559; City of Springfield v. Walker, 42 Oh. St. 543; Labette County v. Elliott, 27 Kan. 606; Wells v. Putnam, 169 Mass. 226, 47 N.E. 1005; City of Buffalo v. Bettinger, 76 N.Y. 393; 2 Dillon, Mun. Corp. § 821; 3 Abbott, Mun. Corp. § 1160; Tiedeman, Mun. Corp. § 142; Beach, Public Corp. § 838; 28 Cyc. 1756.
Where a claim has been reduced to final judgment and the debtor has sufficient assets so that it may be collected, the municipality has no power to compromise the judgment claim. To do that would be giving away the property of the taxpayers and this is beyond the powers of the municipality -- if the municipal officers wish to do charity, they must use their own money. They cannot accept less than the full amount in discharge of such judgment because all controversies have been put to rest and there is no longer anything to compromise. 5 McQuillin, Mun. Corp. § 2479; People v. Parker 231 Ill. 478, 83 N.E. 282; People v. Holten, 287 Ill. 225, 122 N.E. 540; Standart v. Burtis, 46 Hun, 82; Farnsworth v. Town of Wilbur, 49 Wash. 416, 95 P. 642, 19 L.R.A. (N.S.) 320; Town of Butternut v. O'Malley, 50 Wis. 329, 7 N.W. 246; Township of Otsego Lake v. Kirsten, 72 Mich. 1, 40 N.W. 26, 16 Am. St. 524.
However after the entry of final judgment, municipal corporations have the power to compromise and accept less than the full amount of the judgment where the debtor is not able to pay the full amount and the municipality is not able to enforce full payment. Collins v. Welch, 58 Iowa 72, 12 N.W. 121, 43 Am. Rep. 111; Hagler v. Kelly, 14 N.D. 218, 103 N.W. 629; Washburn County v. Thompson, 99 Wis. 585, 75 N.W. 309; 5 McQuillin, Mun. Corp. § 2479. All compromises and settlements made by municipalities must rest in good faith. All the ordinary rules of business conduct by which prudent...
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