State ex rel. Fuller v. Martin

• Decision Date: 03 October 1889
• Parties: STATE EX REL. FULLER ET AL. v. MARTIN.
• Court: Nebraska Supreme Court

27 Neb. 441

43 N.W. 244

STATE EX REL. FULLER ET AL.

v.MARTIN.

Supreme Court of Nebraska.

Oct. 3, 1889.

Syllabus by the Court.

1. The provisions of section 86, art. 1, c. 14, Comp. St., limiting the power of the city council to appropriate money to the annual appropriation bill, and to such sums as in the aggregate shall not exceed the amount of tax authorized to be levied during that year, held not to apply to money authorized to be borrowed by such city for a specific purpose, and where a proposition to apply the same thereto has been sanctioned by a majority of the legal voters of such city, either by a petition signed by them, or at a general or special election duly called therefor.

2. The power to compromise and settle claims of the nature and character of that involved in the case at bar, held to exist in the mayor and council of cities in their legislative capacity, growing out of their general corporate powers, and the necessities of such cases.

3. The mayor is the chief executive officer of the city, and as such it is his duty to see to the execution of all active ordinances, resolutions, and votes of the mayor and council, whether, as a matter of opinion or sentiment, the same meet his approval or not.

Mandamus.

C. E. Magoon and Mason & Whedon, for relators.

Robert Ryan and J. H. Rushton, for respondent.

COBB, J.

This is an original application by the state on the relation of William A. Fuller and others, partners under the firm name of Palmer, Fuller & Co., Nathan H. Warren and others, partners under the firm name of N. H. Warren & Co., William P. Fairbanks and others, partners under the firm name of Fairbanks & Co., and John Lanham, for a peremptory writ of mandamus to be issued to Elisha L. Martin, mayor of the city of Fairmont, Fillmore county, respondent. On January 30, 1888, the relators served sufficient notice on the respondent that on February 17th following, at 9 A. M., the relators would move the court for the issuance of a peremptory writ of mandamus compelling him, as mayor of said city, to sign a certain warrant for the sum of $6,500, theretofore, on September 5, 1887, voted by the common council of said city in full settlement of the claim of the relators against said city, and prepared and issued by the clerk of said city in full settlement of the claims of the relators against said city by reason of the construction of the water-works in and for said city; in support of which motion there was presented the affidavit of Charles E. Magoon, Esq., one of the attorneys for the relators, that each one of the relators was absent from Lancaster county, Neb., and that affiant makes the affidavit for that reason, showing: (1) That the respondent is mayor of said city, duly elected and qualified, and discharging the duties thereof. (2) That on July 22, 1885, said city was a village, duly organized under the laws of this state; that there was duly submitted a proposition to the voters for the issuing of bonds of the village in the sum of $10,000 for the construction of water-works; that said proposition duly carried at a special election in conformity to law, and the bonds were issued, registered, and sold, and the proceeds deposited in the National Bank of Fairmont, where they now remain; that by reason of the increase of population said village became a city of the second class, having less than 5,000 inhabitants; that on July 22, 1885, said village contracted with Ira E. Williams for the construction of its water-works, in accordance with plans and specifications furnished by him, and in the custody of the clerk of said village, and in accordance with the proposition published in the Fairmont Signal. * * * (5) That when the water-works shall have been completed, and the contractor ready to turn them over to the village, the whole system should be tested by the chairman and board of trustees of the village, according to a test of capacity provided; the whole system to be constructed in a good and workman-like manner, to be completed by November 15, 1885; in consideration of which the contractor should be paid by said village $8,916, as soon as the system of water-works should be tested and accepted by the chairman and board of trustees of the village. On August 11, 1885, the contractor, for the consideration of $2,000, sold and assigned his interest in the contract to James Peabody, who, on March 4, 1886, sold and assigned his interest to the firm of N. H. Warren & Co. That on October 4, 1886, N. H. Warren & Co. sold and assigned their interest to Palmer, Fuller & Co., the relators, who now own the contract, and who are entitled to all the rights and benefits arising therefrom. That said works were duly constructed by the various parties interested in the contract, each contributing large sums, amounting in all to $17,200. That Ira E. Williams and James Peabody, by reason of their contributions, became bankrupt and insolvent. That N. H. Warren & Co. expended large sums, and that Palmer, Fuller & Co. furnished all the materials used in the pipes, towers, tanks, and engine-houses in said system. That Fairbanks & Co. furnished all the hydrants, engines, pumps, valves, etc., in the construction, and John Lanham dug the wells of the same. That the works were turned over to the city of Fairmont in September, 1886, and by the council duly tested, and have been in use hitherto, and the water sold to consumers by the city, which has received a large amount of money therefrom. That the city has expended large sums in improving and extending the system, and has never paid the contractor, or his assignees, any sum whatever for the construction of it. That on October 25, 1886, the relators proposed to the city council to turn over their contract to the city, and save the city from all liability for the construction of the works, and pay all existing liens, for the sum of $6,500, which proposition was accepted, and in pursuance of which the city council, on September 4, 1887, voted to allow the city warrant to be issued for said sum in payment of the water-works, by a vote of three to one, or a majority of three-fourths of the city council. That the warrant was duly drawn, and signed by the city clerk, according to law, and presented to the respondent, the mayor of said city, for his signature as such, on September 5, 1887, and said respondent failed and neglected, and still refuses, to sign the same, and that such refusal is without justification in law. That the relators, being without remedy, unless it be by the interposition of the supreme court, therefore pray that a peremptory writ of mandamus issue to the mayor of Fairmont, commanding him to sign said warrant, etc.

The answer of Elisha L. Martin, respondent, denies each averment of the relators, not specifically admitted to be true. (2) He admitsthat he is mayor of the city of Fairmont, duly elected and qualified, and exercising the duties of the office; and admits that the city was a village under the laws of the state. That the proposition for bonds in $10,000 for the construction of water-works was carried at a special election, and as a part of the proposition the question of authority to levy a tax to pay the interest on the bonds, but not the principal, was carried, by reason of which the bonds were not duly issued. He admits that the village of Fairmont has become a city of the second-class of less than 5,000 inhabitants. That on July 22, 1885, the contract set out by the relators was entered into between Ira E. Williams and the village of Fairmont, but avers there was no compliance on the contractor's part with the terms and undertakings of his contract, nor was there of any person claiming under, by, or through him. That the works have never been tested or accepted by the village, now the city, of Fairmont. That by reason of the failure to perform his undertakings under said contract, and of the failure of those undertaking on behalf of Ira E. Williams, there is nothing due the relators, who claim as assignees of the contractor. That it was provided “that the whole of said sum of $8,916 is to be paid as soon as the system of waterworks shall have been tested and accepted by the city of Fairmont,” and nothing before. Therefore respondent is under no obligation to sign the warrant mentioned, or to do any act by which the relators, or those claiming under the contractor, shall receive said sum, or any other sum, from the city of Fairmont. He admits that the city of Fairmont paid Joseph Burns $1,200 for his efforts to secure an adequate supply of water, because the contractor, and the relators claiming under him and his assignment of the contract, had failed to furnish the supply guarantied by the contract, and had refused to comply with the terms of the contract; and that the expenditure to Burns has not produced an adequate supply, and is entirely a loss. He denies that the city of Fairmont in any way accepted the system of water-works, or assumed control over it as upon full compliance with the terms of the contract, or in any other manner, or for any other purpose whatever. He avers that the relators' application is insufficient in law, that it makes no averment of their compliance, or that of their assignor, with the requirements of the contract, nor does it aver that the city of Fairmont has in any manner accepted the water-works. He says, as to the proposition submitted to the city council, and the action thereon, there was no authority in law for the same. That the sole action of the city council in respect to the alleged arrangement, by which a mandamus is sought, was March 17, 1886, the adoption of the following: “Whereas, I. E. Williams, contractor for the Fairmont water-works, and James Peabody, assignee, are indebted to Palmer, Fuller & Co., of Chicago, Ill., Fairbanks & Co., St. Louis, and John Barsby, of Fairmont, for material furnished in the construction of said water-works, and labor performed as an...