State ex rel. Kistler v. City of Hankinson
| Decision Date | 02 November 1925 |
| Docket Number | 4890 |
| Citation | 205 N.W. 995,53 N.D. 346 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Richland County, Wolfe, J.
Reversed.
J. A Dwyer and Lauder & Lauder, for appellants.
The title to a public office cannot be tried by mandamus. Butler v. Callahan, 4 N.D. 481.
A writ of mandamus will not lie where there is any other speedy and adequate remedy. State v. Costello, 29 N.D. 215; Miller v. Stenseth, 67 N.D. 755; Mandan News v Henke, 184 N.W. 991. State v. Burke Co. 190 N.W. 549.
A writ of mandamus is not a writ of right. Territory v Wallace, 1 N.D. 87.
Public officers will not be compelled by mandamus to levy a tax to pay a claim until the claim has been reduced to judgment and the judgment has become final. Sawyer v. Mayhew, 10 S.D. 18, 71 N.W. 141; Diebold Safe & Lock Co. v Gettchel, 3 N.D. 243; Oliver v. Wilson, 8 N.D. 590; Territory v. Cavanaugh, 3 Dak. 325; Wallace v. Woodbury, 1 N.D. 85.
Mandamus will not lie to control the exercise of official duties which are in their nature judicial and discretionary, but will lie to compel the performance of purely ministerial duties. Stephens v. Jones, 123 N.W. 705. (S.D.)
City warrants are not negotiable instruments in the sense that a purchaser in good faith and before maturity takes them free of equities in the city. Gilman v. Gilby Twp. 8 N.D. 627; Erskine v. Steele Co. 4 N.D. 339; State v. Ryan, 9 N.D. 419.
Municipal corporations possess no power to incur debts, and issue negotiable instruments therefor, unless specially authorized to do so by their charter or statutes, or the power to do so can be clearly implied from some power expressly given, which cannot be fairly exercised without it. Dill. Mun. Corp. § 406. Wells v. Supervisors, 102 U.S. 400, 4 S.Ct. 489. Concord v. Robinson, 121 U.S. 165, 7 S.Ct. 937.
The city is not exempt from the common obligation to do justice which binds individuals. Such obligation rests upon all persons, whether natural or artificial. Primental v. San Francisco, 21 Cal. 352.
No relief can be granted as against the interests of any person who is not a party to the proceeding. People v. Curtis, 41 Mich. 723.
As a general rule relief will not be granted in favor of interested third persons. New Orleans v. United States, 49 F. 40.
Where the relator institutes the proceeding in a private capacity, and, although the city is a formal party, the public is in no way interested, no relief will be granted beyond that to which the relator himself is entitled. State v. Cleveland Electric Co. 15 Ohio C. C. 200.
The granting or withholding of a writ of mandamus rests in a measure in the discretion of the court, but that discretion may not be capriciously exercised. Where justice will be subserved by temporarily withholding the writ, and injustice might result from its immediate issue, the court will refuse to issue it until a different case can be presented. Dakota v. Wallace, 1 N.D. 85.
Lawrence, Murphy & Nilles, for respondent.
While courts have been vigilant in their scrutiny of corporate action, and have zealously striven to keep corporations and their agents within the limits of granted powers, they have not favored defenses to honest demands, based upon mere irregularities and informalities. Moore v. Mayer, 73 N.Y. 238, 29 Am. Rep. 134.
It matters not that the promise to pay was in a manner not authorized by law. If payments cannot be made in bonds because their issue is ultra vires, it would be sanctioning rank injustice to hold that payment need not be made at all. Such is not the law. Hitchcock v. Galveston, 96 U.S. 341, 24 L. ed. 659.
A municipality which sells its warrants or bonds and receives the money therefor, is liable to make restitution of the money if the proceedings are entirely void or to pay the warrants or bonds as they mature if the proceedings are irregular or there is some defect not going to the question of power or jurisdiction. Shepard v. Tulare Irrig. Dist. 94 F. 1; Haskell Co. v. National L. Ins. Co. 90 F. 228; Chilton v. Grattan, 82 F. 873; Independent School Dist. v. Rew, 55 L.R.A. 364, 49 C. C. A. 198, 111 F. 1; Huron v. Second Ward Sav. Bank, 49 L.R.A. 534, 30 C. C. A. 38, 86 F. 272; Uvalde v. Spier, 33 C. C. A. 501, 91 F. 594.
A municipality may be estopped by its own records to deny the validity of its obligations, and its resolutions as to the existence or performance of the conditions precedent are conclusive upon the municipality and estop it to show the contrary. 5 McQuillin, Mun. Corp. § 2312; Society for Sav. v. New London, 29 Conn. 174; Lane v. Schomp, 20 N.J.Eq. 82; Bell v. Waynesboro, 195 Pa. 299, 45 A. 930.
Parol evidence is of course inadmissible to explain or vary the effect of the record itself. National Bank v. Grenada, 41 F. 87.
The city council has the final authority on the acceptance of the work for the city. Its decision is judicial and conclusive and may not be elsewhere questioned by the city engineer or by the courts. Lux & Talbort v. Donaldson, 162 Ind. 481, 68 N.E. 1014.
This is a mandamus action. It is unnecessary to incorporate a statement of the facts in this opinion. It was tried upon the same record as the case of Dakota Trust Co. v. Hankinson, post, 356, 205 N.W. 990. The facts are fully stated in the report of that case and may be referred to as the statement of facts herein.
The contentions upon this appeal are: (1) That the remedy of mandamus is not available to the relator for the reason that his legal right is not clear and that, consequently, the duties of the defendants, with respect to the levying of assessments, are not specifically enjoined as a result of their office, trust or station--that they would not be so enjoined until a judgment had been obtained establishing the rights of the relator; (2) that the judgment declaring the right of the relator to the writ is too broad in that it compels the levy of assessments to pay not merely the warrants of the relator but all warrants outstanding, while the proceeding does not purport to be brought in the interest of any person other than the relator; (3) that there was never a sale in fact to the Lincoln Trust & Savings Bank in that the price realized was never placed under the control of the city treasurer.
As to the warrants involved in the mandamus proceeding, which were not issued in payment of partial estimates and which were purchased by the relator from the Lincoln Trust & Savings Bank, we are of the opinion that the considerations found controlling in the Dakota Trust Company case are not decisive. It will be seen from the outline statement of facts that the Lincoln Trust & Savings Bank did not treat the proceeds of those warrants as a clear purchase price to which the city was entitled immediately upon delivery of the warrants to it, nor did it ever remit the same to the city treasurer. It merely took the bonds and credited the city of Hankinson on its books, to use its own language, "with the understanding that this money is to be withdrawn only in payment of estimates due John O'Connor and Company for work in connection with the sewer construction and that before money is drawn out on this account an estimate shall accompany the draft, such estimate approved by the city council and city engineer." It also appears that it disbursed $ 26,000 of this fund on the draft of the John O'Connor Company, or upon that draft accompanied by a short form warrant, (which warrant is not in evidence), drawn on the city treasurer and payable out of the sewer fund. In acknowledging receipt of the warrants, under date of February 14, 1922, which the relator contends were purchased by the bank, the manager of its bond department stated that they were received "through Mr. Fortune of the O'Connor Company," but later testified, by deposition, that they were delivered by the mayor, and it elsewhere appears that the mayor and Fortune were together in Minneapolis at the time of the negotiations. That there was at this time a mutual understanding that the credit in the Minneapolis bank was in reality obtained by Fortune of the O'Connor Company, rather than by the city of Hankinson is further evidenced by a letter of the city auditor dated February 24th, in which he incloses a signature card. In this letter he speaks of the deposit "in your bank to the credit of the city of Hankinson, Hankinson, North Dakota, and deposited by Mr. Fortune of the John O'Connor Company." The signature card transmitted in this letter was the signature card of the mayor and of the city auditor, neither of whom were authorized to pay out money belonging to the city. Under the statute the treasurer is authorized to pay out city funds upon warrants signed by these officials. Comp. Laws, 1913, § 3632. Obviously, the only legitimate purpose the signature card could serve in the Minneapolis bank was to aid in determining the genuineness of the signatures upon city warrants for purposes other than payment. The Minneapolis bank could not serve as the city treasurer of the city of Hankinson, and there is no evidence that it ever qualified or acted, or could have legally acted, as a depositary of funds under the control of the city treasurer (Sess. Laws, 1921, chap. 56), nor evidence that it had in its files the signature card of the city treasurer. As previously stated, the Minneapolis bank did not remit for the warrants to the city treasurer. It simply placed a credit upon its books in favor of the city of Hankinson. It did not recognize the city treasurer in the transaction...
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