State ex rel. Van Hoy v. Abel

• Decision Date: 09 December 1931
• Docket Number: No. 25286.,25286.
• Citation: 178 N.E. 683,203 Ind. 44
• Parties: STATE ex rel. VAN HOY, Treasurer, Etc., v. ABEL, City Treasurer.
• Court: Indiana Supreme Court

203 Ind. 44

178 N.E. 683

STATE ex rel. VAN HOY, Treasurer, Etc.,

v.ABEL, City Treasurer.

No. 25286.

Supreme Court of Indiana.

Dec. 9, 1931.

Appeal from Martin Circuit Court; Milton S. Hastings, Judge.

Mandamus by the State, on the relation of Cosmas C. Van Hoy, as Treasurer of the Board of School Trustees of the School City of Loogootee, against Roy H. Abel, as Treasurer of the City of Loogootee, to compel defendant to pay a warrant issued to plaintiff pursuant to an ordinance. From a judgment for defendant, plaintiff appeals.

Affirmed.

Padgett & Rogers, of Washington, Ind., Fabius Givin and Carlos T. McCarty, both of Shoals, and Joseph P. Smith, of Loogootee, for appellant.

Frank E. Gilkison, of Shoals, for appellee.

MYERS, J.

This was an action by the state, on relation of the treasurer of the board of school trustees of the school city of Loogootee, Ind., against the city treasurer of Loogootee to compel the latter to pay a warrant drawn on the unappropriated general funds of the city for $12,000, payable to the school city pursuant to an ordinance passed by the common council of the city and approved by the mayor thereof appropriating that sum for the use of the board of school trustees in establishing, equipping, and maintaining a public recreation center. Trial by the court, finding and judgment in favor of the defendant appellee and against plaintiff appellant for costs. On appeal to this court, appellant has assigned as error the overruling of his motion for a new trial, wherein he claims the finding of the court was not sustained by sufficient evidence and was contrary to law.

For the purposes of this opinion, we need only to call attention to the evidence showing the passage of the ordinance as above stated, which ordinance was introduced in evidence, and that it contained a provision appropriating $12,000 out of the unappropriated general funds of the city in favor of the board of school trustees of the school city for the purposes authorized by the ordinance; that upon the order of the common council the city clerk issued the city's warrant signed by himself and the mayor, which was properly indorsed and presented to the treasurer of the city for payment. Payment was refused, likewise a refusal to indorse the warrant as payable at any bank which was a depository of the city's funds, although there was in the general funds of the city unappropriated for any other purpose money sufficient to pay the warrant.

Appellant insists that under this evidence, the warrant being in all things regular, the city treasurer had no discretion in the matter; that he had only a ministerial duty to perform and his refusal so to do was grounds for a mandamus proceeding. He cites Ellis v. State ex rel., 183 Ind. 641, 109 N. E. 910, 911.

Appellee here claims, as he did by an affirmative answer below, that section 3 of the ordinance purporting to appropriate from the present general funds of the city an amount of money sufficient to meet the expenses of establishing, equipping, and maintaining playgrounds, was invalid, and the warrant of the city issued for that purpose was void, for the reason, in effect, that the statute under which the common council assumed to act in making the appropriation provides a different method for creating funds for that purpose, and it must be followed. Thus it appears that this controversy involves alone the validity of section 3 of a certain ordinance hereafter to be noticed.

Loogootee is a city of the fifth class, and her common council passed an ordinance supposedly in compliance with sections 1, 2, and 6 of chapter 172, Acts 1925, p. 421, sections 10702, 10703, 10707, Burns' 1926. By section 1, supra, the Loogootee common council was authorized to provide by ordinance for the establishment, equipment, and maintenance of public playgrounds and recreation centers in that city, and to acquire real estate for that purpose in the manner provided by statute to be designated in the ordinance. Furthermore, by section 2, supra, the common council was given authority to “vest the power to establish, maintain and equip playgrounds and recreation centers in the board of school trustees.” Section 6, supra, provides the method of raising funds to meet the expense incurred in carrying out affirmative action authorized by sections 1 and 2. The ordinance follows:

“An ordinance to provide for the establishment, equipment and maintenance of a Public Recreation Center in the City of Loogootee, Indiana; providing for a Board of Control for the same; and appropriating funds therefor.

“Section One. Be it ordained by the Common Council of the City of Loogootee, Indiana, that there be established, equipped and maintained in said City of Loogootee a Public Recreation Center for said City.

“Section Two. Be it further ordained that the power to so establish, equip, and maintain said Public Recreation Center be and the same is hereby vested in the Board of School Trustees of the School, City of Loogootee, Indiana, and their successors in office, and that said Board of School Trustees be and the School Trustees be and the same are hereby vested with all the power, rights, authority and duties which are given them by the laws of the State of Indiana as such Recreation Board.

“Section Three. Be it further ordained that there be and hereby is appropriated the sum of $12,000.00 from the funds of said city, not otherwise appropriated, for the use of said Board of School Trustees to be expended in establishing, maintaining and equipping said public recreation center, and that the Clerk of said City of Loogootee be, and he is hereby, authorized, ordered and directed to draw a warrant on said city for said sum of $12,000, and that said warrant shall be paid by the Treasurer of the said City of Loogootee, immediately upon presentation of the same to him properly endorsed.

“Section Four. This ordinance shall be in force from and after its passage.”

As we see this case, our attention need be drawn only to section 3 of the ordinance, section 6 of the statute (Burns' 1926, § 10707). This section of the statute provides that “All expenses necessarily incurred in carrying out the provisions of ...