State ex rel City of Fargo v. Mitchell

• Decision Date: 23 December 1912
• Citation: 139 N.W. 572,24 N.D. 196
• Court: North Dakota Supreme Court

139 N.W. 572

24 N.D. 196

STATE EX REL CITY OF FARGO v. MITCHELL, Treasurer, and HILDRETH, Intervener

Supreme Court of North Dakota

December 23, 1912

Appeal by intervener from an order of the District Court for Cass County, Pollock, J., denying the right to intervene in mandamus proceedings to compel the principal defendant to certify the legality, etc., of the city bonds, as the treasurer of such city.

Affirmed.

M. A Hildreth, for appellant.

Mandamus ought not to issue as an absolute matter of right. See Emmons County v. Thompson, 9 N.D. 607, 84 N.W. 385; High, Extr. Legal Rem. 307 and cases cited.

Bradford v. San Francisco, 112 Cal. 543, 44 P. 912; Adams v. Brenan, 177 Ill. 194, 42 L.R.A. 719, 69 Am St. Rep. 222, 52 N.E. 314; Union P. R. Co. v. Hall, 91 U.S. 343, 23 L.Ed. 428; People ex rel. Stephens v Halsey, 37 N.Y. 344; Throop, Pub. Off. § 816; State ex rel. Graber v. Matley, 17 Neb. 564, 24 N.W. 200; Winn v. Shaw, 87 Cal. 636, 25 P. 968; Woodruff v. Welton, 70 Neb. 665, 97 N.W. 1037; Colorado Paving Co. v. Murphy, 37 L.R.A. 630, 23 C. C. A. 631, 49 U. S. App. 17, 78 F. 28; Crampton v. Zabriskie, 101 U.S. 601, 25 L.Ed. 1070; Bailey v. Lawrence County, 2 S.D. 535, 51 N.W. 331.

Any interest is sufficient to give a right to intervene. Coffey v. Greenfield, 55 Cal. 382; Kimball v. Richardson-Kimball Co. 111 Cal. 386, 43 P. 1111; Dennis v. Kolm, 131 Cal. 91, 63 P. 141; People ex rel. Fogg v. Perris Irrig. Dist. 132 Cal. 289, 64 P. 399, 773; Bosard v. Grand Forks, 13 N.D. 587, 102 N.W. 164.

Petitioner should be permitted to intervene. State ex rel. Pfister v. Manitowoc, 52 Wis. 427, 9 N.W. 607; Eldridge v. Stockton, 39 Cal. 693; People ex rel. Mott v. Green County, 64 N.Y. 600; People ex rel. Duff v. Booth, 49 Barb. 31; Ricketson v. Milwaukee, 105 Wis. 591, 47 L.R.A. 688, 81 N.W. 864; Foens Bros. Hardware Co. v. Erb, 54 Ark. 645, 13 L.R.A. 353, 17 S.W. 7; Packard v. Hayes, 94 Md. 233, 51 A. 32; Sanitary Dist. v. Lee, 79 Ill.App. 169; Field v. Austin, 131 Cal. 379, 63 P. 692; Moran v. Thompson, 20 Wash. 536, 56 P. 29; Ertle v. Leary, 114 Cal. 238, 46 P. 1; Manly Bldg. Co. v. Newton, 114 Ga. 245, 40 S.E. 274; Andrews v. Ada County, 7 Idaho 453, 63 P. 592; Piedmont Paving Co. v. Allman, 136 Cal. 88, 68 P. 493; Fay v. Reed, 128 Cal. 357, 60 P. 927; McBrian v. Grand Rapids, 56 Mich. 95, 22 N.W. 206.

Any taxpayer or officer of the city had a right to question the validity of the bonds. See Brady v. New York, 20 N.Y. 312; McBrian v. Grand Rapids, 56 Mich. 95, 22 N.W. 206; Wells v. Burnham, 20 Wis. 112; Kneeland v. Milwaukee, 18 Wis. 411; Saunders v. Iowa City, 134 Iowa 132, 9 L.R.A.(N.S.) 392, 111 N.W. 529; State v. Shawnee County, 57 Kan. 267, 45 P. 616; Barber Asphalt Paving Co. v. Hunt, 100 Mo. 22, 8 L.R.A. 110, 18 Am. St. Rep. 530, 13 S.W. 98; Warren v. Barber Asphalt Paving Co. 115 Mo. 572, 22 S.W. 490; Verdin v. St. Louis, 131 Mo. 26, 33 S.W. 480, 36 S.W. 52; Kilvington v. Superior, 83 Wis. 222, 18 L.R.A. 45, 53 N.W. 487; Ricketson v. Milwaukee, 105 Wis. 591, 47 L.R.A. 685, 81 N.W. 864.

Emerson H. Smith, W. H. Shure, and Ball, Watson, Young & Lawrence, for respondent.

The action in which leave to intervene was sought was purely a mandamus proceeding to require the city treasurer to perform a municipal duty, and such action was proper. People v. Hastings, 5 Ill.App. 436; State ex rel. Fullheart v. Buckles, 39 Ind. 272; Henderson v. State, 53 Ind. 60; Rice v. State, 95 Ind. 33; State ex rel. Minneapolis Tribune Co. v. Ames, 31 Minn. 440, 18 N.W. 277; State ex rel. Ahrens v. Fiedler, 43 N.J.L. 400; People ex rel. New York & H. R. Co. v. Havemeyer, 16 Abb. Pr. N. S. 219, 3 Hun, 97; Re Freel, 148 N.Y. 165, 42 N.E. 586, affirming 89 Hun, 79, 35 N.Y.S. 59; State ex rel. Treat v. Richter, 37 Wis. 275; People ex rel. Taylor v. Brennan, 39 Barb. 522; People ex rel. Hathorn v. White, 54 Barb. 622; Pearsons v. Ranlett, 110 Mass. 118; Smalley v. Yates, 36 Kan. 519, 13 P. 848; Angle v. Runyon, 38 N.J.L. 403; State ex rel. Compton v. Anderson, 52 N.J.L. 150, 18 A. 586; Com. ex rel. Century Co. v. Philadelphia, 176 Pa. 588, 35 A. 195.

Petitioners can intervene only for the protection of their own individual interests, and for that purpose only in the event that they can obtain adequate protection in no other way. United States v. Northern Securities Co. 128 F. 812; Kelsey v. Murray, 18 Abb. Pr. 294, 28 How. Pr. 243; Bray v. Booker, 6 N.D. 526, 72 N.W. 933; Dickson v. Downs, 11 N.D. 407, 92 N.W. 798.

Intervener cannot inject new issues into a pending cause by his complaint in intervention, but must take the case as he finds it. Teachout v. Des Moines Broad-Gauge Street R. Co. 75 Iowa 722, 38 N.W. 147; Powell v. Leicester Mills, 92 F. 115; Charleston & W. C. R. Co. v. Pope & Fleming, 122 Ga. 577, 50 S.E. 374.

It was purely a matter in the discretion of the court as to whether the application should be allowed, and there was no abuse of such discretion. Hocker v. Kelley, 14 Cal. 165; Gale v. Frazier, 4 Dak. 196, 30 N.W. 141; Teachout v. Des Moines Broad-Gauge Street R. Co. 75 Iowa 722, 38 N.W. 147; Rockwell v. Coffey, 20 Colo. 397, 38 P. 377; London, P. & A. Bank v. Abrams, 6 Ariz. 87, 53 P. 589; Jacobs v. Hershey Lumber Co. 124 Wis. 54, 102 N.W. 319; Scheidt v. Sturgis, 10 Bosw. 606; Hart v. Kohn, 12 Misc. 648, 33 N.Y.S. 272; Gale v. Frazier, 4 Dak. 196, 30 N.W. 138, (affirmed in 144 U.S. 509, 36 L.Ed. 521, 12 S.Ct. 674); Koehler v. Brady, 82 A.D. 279, 81 N.Y.S. 695; MacArdell v. Olcott, 62 A.D. 127, 70 N.Y.S. 930; Wall v. Beach, 20 A.D. 480, 47 N.Y.S. 33; Earle v. Hart, 20 Hun, 75; Callanan v. Keeseville, A. C. L. C. R. Co. 48 Misc. 476, 95 N.Y.S. 513; Draper v. Pratt, 43 Misc. 406, 89 N.Y.S. 356; Allen v. Coe, 109 Wis. 635, 85 N.W. 492.

OPINION

Statement

BRUCE J.

On July 6th, 1910, an election was held in the city of Fargo submitting to the voters the question of the issue of city bonds for the construction of a pumping station and filtration plant, and necessary machinery and connections. The question submitted to the people was in the following form: "Shall the city of Fargo issue bonds in the sum of sixty-five thousand dollars ($ 65,000), bearing interest at the rate of 5 per cent per annum, for the purpose of paying the cost of machinery and materials for and the construction of a waterworks station and filtration plant, and making the necessary connections with the present existing water mains and water plant, and installing therein all necessary pumps, machinery, appliances, and apparatus for the erecting of the same, said plant and machinery to be used for the purpose of furnishing to the inhabitants of the city of Fargo a pure water supply, and for the purpose of fire protection for said city?" This proposition was carried and answered in the affirmative by a vote of 649 to 78. Bids were then called for by the city for the purchase of said issue of bonds, and on the 10th day of July, 1911, the city council accepted the proposal of the Minnesota Loan & Trust Company for the purchase of said bonds, and thereafter the mayor and city auditor of said city duly executed the same. Printed as an indorsement upon the bonds, however, and as required by law, was a certificate stating in substance that said bonds were issued pursuant to law, and were within the debt limit of the city of Fargo. On the 5th day of November, 1911, this certificate was presented to Chas. H. Mitchell, the defendant and respondent herein, as treasurer of the city of Fargo, for his signature, it being necessary to have the signature of the city treasurer in order to make the bonds negotiable. Mitchell refused to sign the certificate without an order of the court, and an alternative writ of mandamus was obtained by the city of Fargo, requiring the said Mitchell to show cause why a peremptory writ should not be issued to compel him to sign the said certificate. In these proceedings the city treasurer filed an answer which alleged that there was pending in the district court of the county of Cass an action wherein one W. J. Price, a citizen and taxpayer of said city of Fargo, sought to restrain the officers of said city from carrying out the terms of a contract entered into by the said city with one James Kennedy for the construction of the filtration plant referred to, and that said action had not yet been determined, and alleging that in said action the validity of the said contract was attacked, and that the respondent verily believed that the issue of the bonds was illegal and void. The answer, however, specifically stated that the refusal of the treasurer to execute said bonds was "based upon the facts heretofore set forth, upon the pendency of said action testing the validity of said contract." A demurrer was interposed by the city to this answer, and after argument the demurrer was sustained. In these proceedings, and in the argument on the demurrer, M. A. Hildreth, the intervener and appellant herein, appeared as counsel for the city treasurer. From the order sustaining this demurrer the respondent treasurer took and authorized no appeal. Thereupon, after the argument on the demurrer, but before a decision thereon, and again on the 9th day of September, 1911, M. A. Hildreth, for and on behalf of himself as a citizen and taxpayer and resident of the city of Fargo, prayed leave to intervene in the above entitled action, and to file an answer in the same, a copy of which answer was attached to the said petition. In this petition, and as a ground for his request for leave to intervene, said M. A. Hildreth alleged that "he was instructed to prepare, and did prepare, by the defendant in the above entitled action (the city treasurer), an answer which attacked the validity of certain reputed bonds amounting to $ 65,000, about to be issued by the city of...