State v. White

• Decision Date: 02 March 1926
• Docket Number: No. 19250.,19250.
• Citation: 282 S.W. 147
• Parties: STATE ex rel. STREIF v. WHITE, Mayor of City of Mexico.
• Court: Missouri Court of Appeals

282 S.W. 147

STATE ex rel. STREIF v. WHITE, Mayor of City of Mexico.

No. 19250.

St. Louis Court of Appeals. Missouri.

March 2, 1926.

Appeal from Circuit Court, Audrain County; Ernest S. Gantt, Judge.

"Not to be officially published."

Mandamus by the State, on the relation of J. E. Streif, against A. C. White, Mayor of the City of Mexico. On final hearing, the alternative writ was quashed, and relator appeals. Affirmed.

W. Wallace Fry, of Mexico, Mo., for appellant.

A. C. Whitson, of Mexico, Mo., for respondent.

SUTTON, C.

This is a mandamus suit. On final hearing the alternative writ was quashed. Relator appeals. Frederick Whitcomb, who died in Audrain county, Mo., in 1920, by his last will made a gift to the city of Mexico, as follows:

"I give * * * one thousand dollars to the city of Mexico for a public drinking fountain, to be located at the southeast corner of the courthouse square, to be of an Iron Mountain granite of rustic form and donor's name to be inscribed on the fountain and on this fountain put:

"Now those drink that never drank before, And those that drank, drink the more."

On March 19, 1921, the city council of Mexico, by an ordinance duly passed and approved, accepted said gift. On March 12, 1923, an ordinance providing for the erection of a public drinking fountain at the southeast corner of the courthouse square in the city of Mexico, pursuant to said will, was passed by the city council of Mexico and approved by the mayor, James W. Gallaher, the said sum of $1,000, bequeathed for the erection of said drinking fountain having previously been paid by the executor of said will to the treasurer of said city. Mayor Gallaher was authorized by the council to have plans drawn for the fountain. Bids for said work were advertised for in the Mexico Ledger. Mayor Gallaher appointed a committee of two to get bids on the work. Only one bid was made, and that was made by relator for $1,025, and the city council, on April 9, 1923, awarded the work to him, with the approval of Mayor Gallaher. Accordingly a written contract for the erection of the fountain was executed; Mayor Gallaher signing the contract on behalf of the city. In April, 1924, Mayor Gallaher's term of office expired, and A. C. White, the respondent herein, was elected and qualified as his successor. On November 24, 1924, the work of erecting the fountain having been completed the council passed a resolution accepting the fountain and passed a motion allowing relator's bill therefor in the sum of $1,025. On December 6, 1924, the resolution and the allowance of the bill were vetoed by respondent as mayor. On December 8, 1924, the council, by the necessary vote, passed the resolution accepting the fountain and the motion allowing the bill for $1,025, over the mayor's veto. A warrant was drawn to relator for $1,025, the amount of his bill, and respondent refused to sign it. This mandamus suit was then brought to compel him to sign said warrant.

The reasons stated by the mayor for his veto of the resolution accepting the fountain and the allowance of the relator's bill therefor are as follows:

"The contract for the work referred to in the same was let without competitive bidding and without estimate from the city engineer relative to the cost thereof, and contract was procured by a firm one of whom was an officer of the city at the time. Further it appears that the fountain was constructed without the consent of the proper authorities as to its location, and the cost thereof greatly exceeds any reasonable cost for the construction of such fountain. Further the construction does not comply with the intent of the donor of the gift, as there is no provision for cooling of the water in summer or protection of the fountain from the elements in winter."

At the time the ordinance was passed and the contract was entered into for the erection of the fountain, Mayor Gallaher was a partner of the relator in the marble business. The name of the partnership was James W. Gallaher & Co. That this...