State ex rel. First Nat. Bank of York v. Cook
| Decision Date | 03 January 1895 |
| Citation | 61 N.W. 693,43 Neb. 318 |
| Parties | STATE EX REL. FIRST NAT. BANK OF YORK v. COOK, TREASURER. |
| Court | Nebraska Supreme Court |
1. The warrants of a municipal corporation are not negotiable instruments. They do not constitute a new debt, or evidence of a new debt, but are only the prescribed means devised by law for drawing money from the treasury.
2. The act of a treasurer in paying money is ministerial, and he may only make payments upon orders of the officers in whom the law reposes the authority to direct such payment.
3. A writ of mandamus will not be issued to compel a treasurer to pay a warrant unless the right of the relator to receive payment thereof is clear.
4. A city granted a franchise for the construction of waterworks, contracted to pay certain hydrant rentals, and that, in case the owners of the works should issue mortgage bonds, the city would pay a sufficient amount of the hydrant rentals to the trustee under the mortgage to discharge the interest on the bonds. A claim for hydrant rentals was audited and allowed by the council, and a warrant was issued on representation by an agent of the waterworks company that its bonds had not been sold. This representation proved false. An action was begun to foreclose the mortgage securing the bonds, and the city was cited in that action to show cause why it had not paid the hydrant rentals to the trustee. The council, by resolution, directed the treasurer not to pay the warrant until a settlement should be effected. Held that, under such circumstances, an application for a mandamus to compel payment of the warrant must be denied.
Mandamus by the state, on the relation of the First National Bank of York, Neb., to compel George S. Cook, treasurer of the city of York, Neb., to pay a city warrant. Writ denied.Geo. B. France, for relator.
E. A. Gilbert, N. V. Harlan, and G. W. Bemis, for respondent.
This is an original application for a writ of mandamus to compel the respondent, treasurer of the city of York, to pay a warrant alleged to have been issued by the authorities of that city in favor of the relator, for $1,789. It is alleged that this warrant was drawn on the water fund, and that the respondent has in his possession over $3,000 in said water fund, applicable to the payment of the warrant. The warrant is dated August 15, 1889, and indorsed as having been presented on the same day, and not paid for want of funds. The answer admits that the treasurer now holds in his possession more than enough to pay the warrant, belonging to what is denominated the water fund, and derived from taxes collected under the levy of 1889; admits that the warrant was drawn as alleged; that it was presented and payment refused. As grounds for refusing to pay the warrant, the respondent alleges: First. That the warrant does not in form comply with the requirements of the law. Second. That there was no valid appropriation against which the warrant could be drawn. Third. That no authority was ever granted to issue the warrant to the relator. Fourth. That the city of York had entered into a contract with one Strang and another granting to them a franchise for a system of waterworks, contracting with them to lease a certain number of hydrants at a certain rental, and agreeing that, in case Strang and McConnell should issue mortgage bonds upon said waterworks, a sufficient sum from the hydrant rentals to discharge the interest upon such bonds should be paid to the trustees under the mortgage as the rentals became payable; that this franchise passed to a corporation known as the “York Water Works Company,” which made its mortgage securing bonds, amounting to $60,000, and that the agreement of the city referred to was, by its clerk, certified upon such bonds; that the waterworks company, about July 1, 1889, filed its claim against the city for hydrant rentals for the past six months; that its claim was allowed in the sum of $1,789, and that the warrant in question was drawn for that claim; that Strang, one of the original grantees of the franchise, a stockholder in and the agent of the waterworks company, in order to procure the allowance of the claim referred to, represented that all the interest coupons on said bonds up to July 1, 1889, had been paid and canceled, and, relying upon that representation, the claim was allowed, whereas, in fact, said coupons had not been paid, but are still outstanding, and the holders thereof demand payment from the city; that on May 22, 1890, the city council passed a resolution, set out in the answer, that no further payments be authorized on account of hydrant rentals until a settlement should be had between the waterworks company and its bondholders, and all coupons surrendered to the city, and directed the treasurer not to pay the warrant in question until such settlement should be had; that the trustee of the mortgage had brought suit in the circuit court of the United States to foreclose the same on account of default in the payment of said interest coupons. Fifth. That, for certain reasons set out in the answer, the contract, with reference to hydrant rentals, was without legal authority and void. Sixth. That no estimate had been made or published, as required by statute, of the expenses of the city government.
We have very briefly stated the nature of some of these defenses, for the reason that it will not be necessary to consider them all. The referee appointed for the purpose has reported his findings of fact, the sufficiency of the evidence to sustain which is not questioned. From these findings it appears that the claim was presented, allowed, and the warrant issued for the purpose stated in the answer; that the plaintiff purchased the claim after its allowance, and before the warrant was drawn, without actual notice of the issuance of the bonds; that the bonds and mortgage were made and issued as alleged in the answer, and that the contract of the city was as therein set out;...
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