Rice v. Gwinn

• Decision Date: 24 June 1897
• Citation: 49 P. 412,5 Idaho 394
• Parties: RICE v. GWINN
• Court: Idaho Supreme Court

49 P. 412

5 Idaho 394

RICE v. GWINN

Supreme Court of Idaho

June 24, 1897

MAYOR MUST SIGN WARRANT ORDERED ISSUED BY COUNCIL.-Where the council of a city organized under the "act for the organization of cities and villages" (3d Sess. Laws of Idaho), have passed upon and allowed a claim against such city, and ordered a warrant upon the city treasury to issue for the amount thereof, it is the duty of the mayor, on the presentation of such warrant to him for that purpose, to sign the same, and the performance of such duty may be enforced by mandamus.

COUNCIL AUTHORIZED TO EMPLOY COUNSEL TO PROTECT ITS INTERESTS.-When an exigency arises involving the corporate existence of a city, and such city finds itself without an attorney, it is within the powers of the mayor and council of such city to employ counsel to protect its interests in such contingency and their action therein will not be defeated on account of a failure to comply with all the technical details incident to the employment of counsel in ordinary cases.

(Syllabus by the court.)

APPEAL from District Court, Canyon County.

Affirmed, with costs.

Lot L Feltham, for Appellant.

This case is an application for a writ of mandate commanding Montie B. Gwinn, mayor of the city of Caldwell, to sign as mayor a certain warrant drawn on the general fund of the city of Caldwell for the sum of $ 140 payable to John C. Rice respondent, on account of a claim allowed him by the board of councilmen of said city for services alleged to have been rendered and for costs advanced by him in the case of C. M. Hays, district attorney, plaintiff v. A. K. Steunenberg et al., defendants, under an alleged contract with one T. C. Egleston, on the part of said city. It is provided in section 63 of the City and Village Laws, Second Session, page 110: "The city or village clerk shall have the custody of all laws and ordinances and shall keep a correct journal of the proceedings of the council or board of trustees." Section 76 of same act provides: "On the passage or adoption of every by-law or ordinance, and every resolution or order to enter into a contract by the council or board of trustees, the yeas and nays shall be called and recorded, and to pass or adopt any by-law, ordinances, or any resolution or order, a concurrence of a majority of the whole number elected to the council or trustees shall be required." These laws show that the city can contract only in a prescribed way. The official record is the proper evidence of the doings of the meeting, and it is not open to contradiction, enlargement, or explanation by parol. This general rule applies to the records of towns, parishes, school districts and all similar organizations. (1 Beach on Public Corporations, sec. 378; 2 Beach on Public Corporations, sec. 1298; Halleck v. Boylston, 117 Mass. 470; Louisville v. McKegney, 7 Bush (Ky.), 652; Idaho Rev. Stats., sec. 5977, subd. 5, secs. 5979, 5984.) Parol evidence cannot be admitted to show vote which the record does not show. (Orford v. Benton, 36 N.H. 403.) Section 76 of Third Session Laws, page 120, requires that every contract entered into by the council must be rocorded by the clerk. An implied promise cannot be raised against a corporation, when by its charter it can only contract in a prescribed way. (1 Dillon on Municipal Corporations, secs. 449, 459, and cases cited in note 2 of sec. 449; Hampton v. Board of Commrs., Logan Co., 4 Idaho 646, 43 P. 326; 1 Dillon on Municipal Corporations, secs. 460, 461; 1 Beach on Public Corporations, sec. 227.) The alleged contract is ultra vires, illegal and void. (East St. Louis v. Thomas, 11 Ill.App. 283.) The common council has no power under the charter of the city to subject the city treasury to the payment of salaries to others than legally appointed officers, and every taxpayer of the city must be heard, if in the legal and proper way he asks the interposition of the court to prevent such unlawful payment. (1 Dillon on Municipal Corporations, sec. 447; 1 Beach on Public Corporations, secs. 182, 625, 628; Samis v. King, 40 Conn. 310; Seeger v. Nueller, 133 Ill. 87, 24 N.E. 513; People v. Feeman, 30 Barb. (N. Y.) 193; Lyddy v. Long Island City, 104 N.Y. 222, 10 N.E. 155; Smith v. Broderick, 107 Cal. 644, 48 Am. St. Rep. 167, 40 P. 1037.) A contract which is invalid because not authorized by law cannot be made valid and binding retroactively by any subsequent action of the corporate body, and a liability be thereby fastened upon the corporation. (Arnott v. City of Spokane, 6 Wash. 442, 33 P. 1065; Hampton v. Board of Commrs. of Logan Co., 4 Idaho 646, 43 P. 324; Meller v. Board, 4 Idaho 44, 35 P. 712; Keller v. Hyde, 20 Cal. 594; Chalk v. White, 4 Wash. 156, 29 P. 979; McFarland v. McCowen, 98 Cal. 329, 33 P. 114; Von Schmidt v. Widber, 105 Cal. 151, 38 P. 682.)

Rice & Griffiths, for Respondent.

Mendamus is the proper remedy to compel a municipal officer to perform a ministerial duty. Under our City and Village Act, the city council is the proper body to liquidate and allow claims against the city, and order them paid. After an order for a warrant is made by the council, the mayor and clerk become ministerial officers to carry out the order of the proper authority. Under such circumstances, the mayor should be compelled by mandamus to perform his duty. (Sess. Laws, 1893, secs. 80, 81, p. 122; High on Extraordinary Legal Remedies, sec. 351; People v. Flagg, 16 Barb. 503; State v. Richter, 37 Wis. 275; Jack v. Moore, 66 Ala. 184; Ireland v. Hunnel, 90 Iowa 98, 57 N.W. 715.) Under such circumstances the mayor cannot exercise his judgment, or question matters of fact or discretion. But the courts will not compel an officer to do an illegal act. The appellant could defend on one ground only--namely, that the allowance of the claim was without authority of law; in other words, that the warrant shows on its face that the council exceeded their powers in ordering it drawn. (McFarland v. McCowen, 98 Cal. 329, 33 P. 113; McConoughey v. Jackson, 101 Cal. 265, 40 Am. St. Rep. 53, 35 P. 863.) In the absence of statutory restriction, cities have power to employ special counsel. (1 Dillon on Municipal Corporations, 4th ed., sec. 479; Smith v. Sacramento, 13 Cal. 531; Hornblower v. Duden, 35 Cal. 664; State v. Peterson, 40 N. J. L. 186.)

HUSTON J., QUARLES, J. Sullivan, C. J., Quarles, J., and Huston, J., concurring.

OPINION

HUSTON, J.

On April 21, 1896, an action was commenced in the district court for the county of Canyon for the purpose of testing the legality of the municipal corporation known as the city of Caldwell as a city of the second class, under the provisions of the laws of Idaho. (Idaho 2d Sess. Laws, p. 97.) Such proceedings were had in said action as resulted in a judgment by said district court to the effect that said city of Caldwell had no legal existence, and that certain parties therein named and designated as trustees of the town of Caldwell were the persons entitled to the offices to which they had been elected under the town organization. And acquiescing in the judgment of the district court for the time being, the officers of the city of Caldwell yielded up the administration of the affairs of the city of Caldwell as directed by the judgment of the district court. But not having infinite trust and confidence in the correctness of said judgment, the said council of the said city of Caldwell proposed to go further, and appeal from said judgment of the district court to the supreme court of the state. In furtherance of this purpose, they called upon the regularly appointed attorney of said city, one John T. Morrison, who was also a trustee of the town or village organization, to whom the judgment of the district court had relegated the government and control of the said city of Caldwell, and said attorney positively refused further to represent said city of Caldwell in said litigation beyond filing and serving a notice of appeal from said judgment of the district court. In this condition of affairs, the mayor of the city of Caldwell, under and by direction of the council of said city, employed the respondent herein to represent said city in said action in the supreme court of the state, and agreed to pay him a certain compensation therefor. The respondent appeared for the said city of Caldwell in the supreme court upon said appeal, and by the judgment of said supreme court the judgment and decision of the district court was reversed, and the legal existence of said city of Caldwell was affirmed. On the eleventh day of August, 1896, the respondent presented his account for services rendered as aforesaid under his agreement with said mayor of the city of Caldwell, acting under and by direction of the council of said city, and on the 7th of September said council duly allowed said account, and ordered a warrant for said service to be drawn on the general expense fund of said city, payable to respondent, which warrant was duly drawn by the clerk, and presented to the mayor of said city of Caldwell (the appellant herein) for his signature, and the said mayor then, did, and ever since has, refused to sign said warrant alleging, in...