State v. The Mayor and Council of Wilmington
| Decision Date | 19 September 1922 |
| Citation | 32 Del. 42,118 A. 640 |
| Parties | STATE OF DELAWARE, on the relation of the Volunteer Firemen's Relief Association of Wilmington, Delaware, a corporation of the State of Delaware, v. THE MAYOR AND COUNCIL OF WILMINGTON, a Municipal Corporation of the State of Delaware; LeRoy Harvey, Mayor; Howard M. Ward, President; Arthur Johnson, Herman D. Faulkner, John E. McNabb, James T. Taylor, Alex R. Abrahams, John O. Hopkins, James S. Evans, James B. McManus, Harry E. Vincent, John J. Mulvena, John F. Henry and John J. Murray, members of the City Council, and Samuel J. White, City Treasurer |
| Court | Delaware Superior Court |
Superior Court for New Castle County, May Term, 1922.
MANDAMUS No. 175, May Term, 1922.
The motions to quash the rule and dismiss the petition are granted and the rule discharged.
Henry R. Isaacs and La Penne Guenveur for relator.
Reuben Satterthwaite, Jr., for defendants.
OPINION
A verified petition was filed by the relator praying for the issuance of a writ of mandamus directed to the defendants to compel them to pay to the relator the sum of fifteen thousand dollars. The petition and suit is based upon Sec. 13, c. 111, vol. 32, Laws of Delaware (vol. 32, p. 332), entitled, "An act creating a department of public safety for the city of Wilmington and prescribing its powers and duties." The section reads:
"Within three months after the taking over by the 'Department of Public Safety,' of the real and personal property of the several fire companies, the said 'the mayor and council of Wilmington' shall pay to the proper officers of the Volunteer Firemen's Relief Association, the sum of fifteen thousand dollars, the same being in full payment for all claims and demands whatsoever."
The petition alleges that the prescribed time of three months has elapsed and that there has been a demand for and a refusal of the payment of the said sum of $ 15,000.00.
On this petition a rule was issued to show cause why a writ of mandamus should not issue as prayed for.
The respondents have moved to quash the rule and to dismiss the petition for the following reasons:
1. That the said petitioner has an adequate and sufficient emedy at law, to wit, an action at law against the mayor and ouncil of Wilmington for the collection of the fifteen thousand $ 15,000.00) dollars alleged to be due.
2. Said petition does not allege that the respondents have sufficient money, not otherwise appropriated by law, out of which said fifteen thousand ($ 15,000.00) dollars can be paid.
3. That said petition does not name as respondents necessary parties.
4. That said respondents would be unable to comply with the terms of a peremptory writ of mandamus if the court should order such a writ as prayed for in said petition.
It is unnecessary to consider the first two objections to the petition filed in view of the opinion as to the third and fourth. The third objection sets forth that necessary parties are not made in the suit.
Section 34 of the charter of the city of Wilmington (Laws of Delaware, Vol. 17, c. 207) provides that all money coming into the hands of the city treasurer shall be deposited by him in banking institutions provided by said act, in the name of "the mayor and council of Wilmington" generally, except as to the proceeds of bond issues. The section further provides:
"All moneys so deposited shall be drawn out only on an order signed by the president and clerk of council, and countersigned by the city auditor and city treasurer, or in case of the absence or temporary disability of either, then by such person as the council may designate by resolution and the others."
Section 35 of said act provides:
"If the city treasurer shall pay any money out of...
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