State ex rel. Robertson Inv. Co. v. Patterson, former County Treasurer

• Decision Date: 11 December 1934
• Docket Number: 1820
• Parties: STATE, EX REL., ROBERTSON INV. CO. v. PATTERSON, FORMER COUNTY TREASURER, ET AL
• Court: Wyoming Supreme Court

38 P.2d 617

47 Wyo. 416

STATE, EX REL., ROBERTSON INV. CO. v. PATTERSON, FORMER COUNTY TREASURER, ET AL

No. 1820

Supreme Court of Wyoming

December 11, 1934

ERROR to the District Court, Natrona County; JAMES H. BURGESS Judge.

Mandamus action by the State, on the relation of the Robertson Investment Company, against Gertrude E. Patterson, as former County Treasurer of the County of Natrona, and Alta Pearl Massee, as County Treasurer of such county, successor in office to Gertrude E. Patterson. To review a judgment for defendant county treasurer, relator brings error.

Affirmed.

For the plaintiff in error there was a brief by W. B. Cobb, E. Paul Bacheller, E. E. Enterline, and Edward E. Murane, all of Casper, and oral arguments by Messrs. Cobb, Bacheller Enterline and Murane.

The trial court erred in denying motion to strike portions of the amended answer concerning court orders. Article V, Section 10, Constitution, Section 89-1912, R. S. 1931; Anderson v. Matthews, 8 Wyo. 307; Jones v. Bowman, 10 Wyo. 47; Bissinger & Company v. Weiss, 27 Wyo. 262. Change in membership of the Board of Commissioners gave no right to rescind contracts made by the former board. Cope v. Smith County, (Colo.) 274 P. 750; North Laramie Land Company v. Hoffman, 28 Wyo. 183. A proper cause of action was set forth to enforce payment of certificates of indebtedness for the compensation of attorneys employed under contract. Sec. 30-402, R. S. 1931; Appel v. State, 9 Wyo. 187. No facts were pleaded in defense tending to show a fraudulent contract, and the plea is wholly deficient. 18 C J. 745; 12 R. C. L. 416; Smith v. Stone, 21 Wyo. 62; Gertner v. Bank, (Colo.) 257 P. 247; Smith v Johnson, (Idaho) 276 P. 320; Berryman v. Dore, (Idaho) 251 P. 757; Milner v. Company, (Idaho) 232 P. 581; Heisler v. Company, 223 P. 735; Palmberg v. City, (Ore.) 228 P. 107. Fraud will not be imputed when the circumstances consist of honesty of intention. Bank v. Ford, 30 Wyo. 110; Patterson v. Company, 7 Wyo. 401; Hanson v. C., B. & Q. R. R. Co., 32 Wyo. 337; Kahn v. Company, 4 Wyo. 419; Williams v. Yocum, 37 Wyo. 432. Requirements of an answer are prescribed by Section 89-1014, R. S. The defense here is neither a counter-claim nor a set-off. New matter is defined by Phillips on Code Pleading, pp. 212, 220. It admits the averments of the petition and alleges facts that destroy or defeat them. A mere denial is not new matter. Mauldin v. Ball, 5 Mont. 96; Stevens v. Conley, (Mont.) 138 P. 189; Iba v. Association, 5 Wyo. 355; Mutual Life Ins. Co. v. Summers, 19 Wyo. 441. Claims against counties are paid by warrants, Section 30-102, R. S., or certificates of indebtedness. The treasurer is required to register them, Section 30-1112, R. S., and pay them. Section 30-1114, R. S. Delfelder v. Bank, 38 Wyo. 481. The county board is without power to rescind such warrants in the absence of fraud, imposition or failure of consideration. Mandamus is a discretionary writ. See cases supra. After the allowance of a claim and payment thereof is ordered stopped, a ministerial officer cannot be compelled by mandamus to make such payment. 38 C. J. 771; Murphy v. Treasurer, (Mich.) 23 N.W. 197; St. v. Cook, (Nebr.) 61 N.W. 693. The relator was entitled to a peremptory writ. Salt Lake City v. Clinton, (Utah) 117 P. 1075; Bailey v. Van Dyke, (Utah) 240 P. 454; Bartlett v. Dunscomb, 209 P. 74; Carmichael v. Riley, 205 P. 478; Cope v. Flannery, 234 P. 845; Nightingale v. Williams, (Cal.) 233 P. 807; Santa Cruz v. McPherson, 65 P. 574; McConoughey v. Jackson, (Cal.) 35 P. 863; Stenberg v. State, ex rel. Keller, 67 N.W. 190. At any time before the rights of third persons have vested a counsel or other corporate body may, if consistent with its character, or rules or action, rescind previous votes and orders. Dillon on Mun. Corp., 4th Ed., Secs. 290, 311, 314; Abbot's Mun. Corp. 309. In the present case the rights of third parties had intervened before the attempted rescission by the new board. The following statutes apply: Section 89-4501, 4504, 4508, 4509, 4511, 4512, 4513 and 4514, R. S. 1931. Pleadings in mandamus are the same as in civil actions. Bacon, et al. v. City, 54 P. 609; Cloud v. Town, (Wash.) 37 P. 305; Savage v. Stenberg, (Wash.) 54 P. 611 and cases cited. McFarland v. McCowen, (Cal.) 33 P. 113; Clapp v. Titus, (Mich.) 100 N.W. 1005. The following authorities support the right to a peremptory writ. Greeley v. County, 22 Mont. 580; State v. McCarthy, (Mont.) 282 P. 1045; State v. Davis, (Wash.) 61 P. 43; State v. City, (Wash.) 161 P. 74; Appel v. State, supra; Lobban v. State, 9 Wyo. 377. Attorneys' fees may be recovered in mandamus against an officer who fails to discharge the duty imposed by statute. Bailey v. Edwards, (Mont.) 133 P. 1095; State v. Cocking, (Mont.) 213 P. 594; Green v. McCracken, (Kans.) 67 P. 857; Larabee Flour Mills Co. v. Ry. Co., 116 P. 901; Trust Company v. Finney, Mayor, et al., (Kans.) 144 P. 222. Arbitrary action is condemned by the Constitution, Article I, Section 7, and by this court in State v. Loucks, 30 Wyo. 485.

For the defendant in error, there was a brief by George A. Weedell and R. R. Rose, both of Casper, and oral argument by R. R. Rose.

Plaintiff failed to prove its case. Section 89-4501-4519, R. S. 1931; 38 C. J. 914. An applicant for mandamus has the burden of proving all facts necessary to authorize its issuance, unless admitted on the record. All allegations of relator's petition were denied in the answer. No evidence was introduced on behalf of the plaintiff; no valid judgment could have been entered unless plaintiff's allegations, denied by defendant, were immaterial, or unless the issuance by the trial judge of the ex parte peremptory writ in cause numbered 7026 adjudicated the right of relator to collect the money in the absence of proof. The county board had no authority to employ counsel; it had no power to donate public funds. Article 16, Section 6 of the Constitution, Section 1451, C. S. 1920. Resort may be had to pleadings to determine the position of parties, 47 C. J. 176-178 and the capacity in which defendant is sued. Fountain v. Board, (N. C.) 87 N.E. 990; State v. Knutson, (Wash.) 142 P. 444; Davis v. Board, 4 Wyo. 477; Collins v. Board, 20 Wyo. 517. The attorneys claimed to have been employed were in other cases opposed to the interests of the county and were disqualified. 6 C. J. 619-620; Spinks v. Davis, 32 Miss. 152; Herrick v. Catley, 30 How. Pr. 208; MacDonald v. Wagner, 5 Mo.App. 56; Heffron v. Flower, 35 Ill.App. 200; Adams v. Woods, 8 Cal. 306; McArthur v. Fry, 10 Kan. 179; In re Boone, 83 F. 944; Boyd v. Court, 274 P. 7; Strong v. Union, (Ill.) 55 N.E. 675. The trial court was without jurisdiction to issue a peremptory writ ex parte in case numbered 7026. 38 C. J. 929; Chapter 388, W. C. S. 1920; Sections 6316-6334, also 6320, C. S. 1920; Mayer v. Wilkinson, (Nebr.) 73 N.W. 214; Horton v. State, (Nebr.) 84 N.W. 87; State v. Harrington, (Nebr.) 110 N.W. 1016; Ins. Co. v. Scheffer, 12 Minn. 382; Wellston v. Matthews, 230 P. 739; Rea v. Company, (Kans.) 125 P. 27; Commissioners v. Court, (N. M.) 223 P. 516; Board v. Territory, 52 L.Ed. 202; Queen v. Fox, 2 Ad. & Ell., (N. S.) 246; 42 Eng. Com. L. Rpts. 658. The judgment in case numbered 7026 is not res judicata. State v. Cunningham, (W. Va.) 11 S.E. 76. The claim was not chargeable against the county. Sec. 1412, C. S. 1920. The board in allowing and auditing claims does not act in a judicial capacity. State v. Diemer, (Mo.) 164 S.W. 516; County v. Russell County, 79 S.E. 393; State v. Perry, 65 N.E. 528; 15 C. J. 604; Merriam v. Board, (Cal.) 14 P. 137; Jacks v. County Treasurer, 142 P. 121; Walton v. McPhetridge, 52 P. 731; State v. Montoya, (N. M.) 146 P. 956. Claims unlawfully allowed and paid may be recovered back by the county. Norfolk v. Cook, (Mass.) 97 N.E. 778; Gross v. Whitley, 58 L. R. A. 394. The cancellation of the certificates by the county board was a complete defense. Sections 1412, 1432, 1436, 1447, C. S. 1920; 15 C. J. 601; State v. Auditor, 43 Ohio St. 311; 38 C. J. 771; Harrison v. Ogden, 145 N.W. 680; Petters v. Rock River, 3 Wyo. 225; Van Akin v. County Treasurer, 75 N.W. 938; State v. Cook, (Nebr.) 61 N.W. 695. Mandamus will not lie against a treasurer to compel payment of a stopped warrant. Frankl v. Bailey, (Ore.) 50 P. 186; Union County v. Hyde, 37 P. 76 and cases cited. No suit shall be maintained on any claim against the county until it shall have been presented for allowance. Sec. 1362 C. S. Nor attorneys' fees paid for services not required by law. Sec. 1306, C. S. 1920; Salsbury v. Fiber Company, 91 A. 536; State v. Goodwin, (S. C.) 59 S.E. 35. Claims must be itemized. Houtz v. Commissioners, 11 Wyo. 152; County v. Denebrink, 15 Wyo. 351; Hudson v. Ladd, 37 Wyo. 419; State v. Burdick, 4 Wyo. 276; Appel v. State, 9 Wyo. 196. As to mandamus we also cite State v. Walker, (Tenn.) 47 S.W. 417. The county cannot pay an unreasonable fee. Spence v. County, (Ark.) 182 S.W. 573; Miles v. County, (Nebr.) 148 N.W. 959. Mandamus is controlled by equitable principles. 38 C. J. 543; 38 C. J. 769, 770; 15 C. J. 540; State v. Diemer, 164 S.W. 517. Mandamus should not issue where property rights of third parties are involved. 38 C. J. 549-551; Smith v. Hodgson, 59 S.E. 272; Spurrier v. Newmiller, 174 P. 338; State v. Osborne, 108 N.E. 513; McCormick v. City, 97 A. 777; Capitol Company v. Hoey, 33 S.E. 160; State v. Fields, 263 S.W. 853. The judgment rendered by the trial court in favor of defendants and against the plaintiff is correct and ought to be affirmed.

There was a brief in support of motion to strike by Wm. B. Cobb, E. Paul Bacheller, E. E. Enterline, and Edward E. Murane.

No final judgment or order was made and defendant cannot assign cross-errors. 3 C. J., p. 352. Pla...