State, ex rel. First National Bank of York v. Cook

• Decision Date: 03 January 1895
• Docket Number: 5483
• Citation: 61 N.W. 693,43 Neb. 318
• Parties: STATE OF NEBRASKA, EX REL. FIRST NATIONAL BANK OF YORK, v. GEORGE S. COOK, TREASURER
• Court: Nebraska Supreme Court

61 N.W. 693

43 Neb. 318

STATE OF NEBRASKA, EX REL. FIRST NATIONAL BANK OF YORK, v. GEORGE S. COOK, TREASURER

No. 5483

Supreme Court of Nebraska

January 3, 1895

ORIGINAL application for mandamus.

WRIT DENIED.

George B. France, for relator, cited, to the contention inter alia that a warrant prima facie valid should be paid: Ray v Wilson, 10 So. Rep. [Fla.], 613.

G. W Bemis, E. A. Gilbert, and N. V. Harlan, contra:

The warrant is invalid because no annual appropriation bill was passed by the council within the first quarter of the fiscal year. (Town of Olin v. Myers, 7 N.W. [Ia.], 509; 1 Dillon, Municipal Corporations, sec. 291; State v Gray, 23 Neb. 365; Consolidated Statutes, secs. 2899, 2902, 2909, 2911; City of Blair v. Lantry, 21 Neb. 258.)

Courts will not grant a mandamus to a person to do any act when it is doubtful whether he ought to do it. (High, Extraordinary Legal Remedies, sec. 9, p. 13; People v. Davis, 93 Ill. 133; Commissioners of Highways v. People, 99 Ill. 587; Oakes v. Hill, 8 Pick. [Mass.], 46; People v. Klokke, 92 Ill. 134.)

No legal estimate or appropriation bill had been passed prior to the passage of the ordinance. (City of Blair v. Lantry, 21 Neb. 258; McElhinney v. City of Superior, 32 Neb. 744; Grand Island Gas Co. v. West, 28 Neb. 852.)

IRVINE, C. POST, J., not sitting.

OPINION

IRVINE, C.

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 water-works, 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 water works, 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 water-works 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 water-works 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 water-works company and its bond-holders, 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; that when the warrant was issued Strang represented to the council that the bonds had not been sold; that an action is pending in the federal court as charged in the answer, and that the city has been cited to appear in said case and show cause why it has not paid the past due coupons to the trustee, and that the rescinding resolution set out in the answer was passed as alleged. The report of the referee finds on all the other issues, but the facts already stated are sufficient to control the case. It has been held that mandamus will lie to compel the payment by a treasurer of warrants legally issued upon accounts duly audited and allowed, when such warrants have been presented and payment refused, and there are sufficient funds in the treasury to pay said warrants after the payment of all warrants drawn against that fund prior to the same. (State v. Gandy, 12 Neb. 232, 11 N.W. 296.) It will be observed that this rule is restricted to the case of warrants legally issued. It is well settled that such instruments are not negotiable instruments, and that a purchaser thereof does not take the same...