State ex rel. Vanhoy v. Able
| Decision Date | 09 December 1931 |
| Docket Number | 25,286 |
| Parties | State, ex rel. VanHoy, Treasurer, etc., v. Able, City Treasurer |
| Court | Indiana Supreme Court |
1. MUNICIPAL CORPORATIONS---Validity of City Warrants---Prima Facie Rule Stated.---A city warrant, legal on its face, in the hands of one apparently authorized to demand payment where the city is alleged to have unappropriated funds sufficient to pay the same, is prima facie valid, and, in the absence of evidence of its invalidity, may be enforced. p 49.
2. MANDAMUS---Action to Mandate Payment of City Warrant---Ordinance Authorizing Warrant Invalid---Action in Mandate will not Lie.---A city warrant, although prima facie valid, will not be enforced by mandate where the ordinance authorizing it is invalid, as the warrant would be without authority of law. p. 49.
3. MANDAMUS---Action to Compel City Treasurer to Pay Warrant---Warrant Invalid---Payment cannot be Coerced by Mandate.---In an action of mandate to compel a city treasurer to pay a warrant, if the defendant has knowledge that the warrant was issued without authority of law, he may refuse payment, and it cannot rightly be coerced by mandate. p. 49.
4. MANDAMUS---Action to Compel City Treasurer to Pay Warrant---Warrant Invalid---Defendant, by Answer, may Challenge Relator's Legal Right to Payment.---In an action of mandate to compel a city treasurer to pay a warrant drawn pursuant to a city ordinance, if the defendant deems the ordinance invalid, he may, by answer, challenge the relator's legal right to payment. p. 50.
5. MUNICIPAL CORPORATIONS---Powers of Cities and Towns.---Cities and towns possess only such powers as are granted by the Legislature in express words, and those necessarily implied or incidental to those expressly granted, and those indispensable to the declared objects and purposes of the corporation and to its continued existence. p. 50.
6. MUNICIPAL CORPORATIONS---When Discretion as to Manner of Exercising Powers is Allowed---When not Allowed.---Where the manner of the exercise of powers expressly granted to a municipal corporation is not prescribed, a reasonable discretion will be allowed in adapting means to the end, but where a definite course of procedure is prescribed, such procedure must be followed. p. 50.
7. MUNICIPAL CORPORATIONS---Establishment of Public Playgrounds---Recreation Centers, etc.---Method of Raising Funds Therefor Prescribed---Funds to be Used are Limited---Ordinance Providing Otherwise Invalid.---The act of 1925 relative to the establishment and maintenance of public playgrounds, recreation centers, etc. (Acts 1925, ch 172, p. 421, 10702--10709 Burns 1926) furnishes a complete course of procedure for the raising of funds to be expended in "carrying out the provisions of the act" and limits the funds to be used to those collected in the manner prescribed by the Legislature. It necessarily follows that the council lacks power to provide for the use of funds not raised in the manner prescribed, and an ordinance providing for the use of such funds is invalid. p. 51.
From Martin Circuit Court; Milton S. Hastings, Judge.
Action of mandate on the relation of Cosmas C. VanHoy as treasurer of the Board of School Trustees of the School City of Loogootee against Roy H. Able as treasurer of the city of Loogootee to compel the defendant to pay a warrant issued to the relator. From a judgment for defendant, the relator appealed.
Affirmed.
Alvin Padgett, Arthur Rogers, Fabius A. Gwin, Carlos T. McCarty and Joseph P. Smith, for appellant.
Frank E. Gilkison, for appellee.
This was an action by the State on relation of the treasurer of the board of school trustees of the school city of Loogootee, Indiana, 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. (1915), 183 Ind. 641, 109 N.E. 910.
Appellee here claims, as he did by an affirmative answer below, that § 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 § 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 §§ 1, 2 and 6 of ch. 172, Acts 1925 p. 421, §§ 10702, 10703, 10707 Burns 1926. By § 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 § 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 §§ 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.
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