Trowbridge v. Schmidt

• Decision Date: 13 April 1903
• Citation: 82 Miss. 475,34 So. 84
• Court: Mississippi Supreme Court
• Parties: WILLIAM L. TROWBRIDGE, MAYOR, ETC., OF VICKSBURG, v. FRANK A. SCHMIDT

34 So. 84

82 Miss. 475

WILLIAM L. TROWBRIDGE, MAYOR, ETC., OF VICKSBURG, v. FRANK A. SCHMIDT

Supreme Court of Mississippi

April 13, 1903

March 1903

FROM the circuit court of Warren county. HON. GEORGE ANDERSON Judge.

Schmidt appellee, was plaintiff in the court below; Trowbridge, mayor and treasurer of the city of Vicksburg, appellant, was defendant there. The suit was for a mandamus. From a judgment in plaintiff's favor the defendant appealed to the supreme court. The facts are sufficiently stated in the opinion of the court.

Reversed and remanded.

Dabney & McCabe, for appellant.

The officers of the city are not authorized, as its trustees, to pay a claim which is barred by the statute of limitations. Both the right and remedy are lost where a claim is barred by the statute. Sec. 2755, Code 1892; 1 Dil. Mun. Corp., sec. 91, pp. 17, 18; Sykes v. Columbus, 55 Miss., p. 137; Adams v. Greenville, 77 Miss., p. 881; Beck v. Allen, 58 Miss., pp. 143, 158, 159 and 160; Ice Co. v. Adams, 75 Miss. 415; Spengler v. Trowbridge, 69 Miss. 46.

It is said for appellee that the statute (sec. 16 of charter, p. 432, Laws 1884) is imperative and the mayor is without discretion in the matter, but this court has repeatedly held that any taxpayer could enjoin the illegal payment of the public money. 2 Dil. Mun. Corp., 906, 907, 908; Beck v. Allen, supra.

Henry, Scudder & Mulligan, for appellee.

The allowance by the city council was a legal and valid judgment in appellee's favor.

A municipality always had the inherent right to settle every suit or claim filed against it, as has an individual. 20 Am. & Eng. Enc. Law (2d ed.), 1146, note 8.

Trowbridge, as city treasurer, was only a ministerial officer. It was his duty to see that the warrants handed to him for his endorsement or approval had been ordered paid by the city council. Sec. 16, p. 432, Laws 1884, requiring that "all warrants issued by the city in payment of allowances made shall be presented to the treasurer of the city, who, if satisfied they are correct, shall write across the face thereof, 'approved,' and so sign his name thereon as treasurer," does not mean that the treasurer shall review the action of the board of mayor and aldermen as to the correctness or legality of an allowance, but means merely that the treasurer shall inspect the warrant for correctness, in so far as it fixes the amount, as it was allowed, and that it is made payable to the proper party. 2 Beach on Public Corporation, secs. 872, 876; Reid v. City of Buffalo, 2d Dil., sec. 859, note 3; Bartlett v. Crozier, 17 Johnson (N. Y.), 458, 439.

Mandamus lies to compel an officer to perform a duty necessarily imposed on him by the office he holds. Pond v. Perrett, 42 Conn. 13.

OPINION

CALHOON, J.

Schmidt's petition for mandamus sets forth that Vicksburg, in grading her streets, had damaged his real estate; that he applied to her municipal board for compensation, which was allowed, and $ 500 ordered to be paid to him, and the clerk issued the warrant, but that, by her charter, the treasurer had to approve and sign it, and give check for it on the city's bank of deposit, before the money could be had; and that the mayor, who was also treasurer, refused to do this; and the prayer is that he be compelled to do it, by peremptory writ of mandamus. The treasurer filed eight pleas to this petition, all of which were demurred to, and the demurrers sustained. We do not disturb this ruling as to the 1st, 2d, 4th, 5th, 6th, and 7th pleas, but concern ourselves with the 3d and 8th.

The third plea avers, in proper terms, that, when Schmidt filed his claim for allowance with the board, it was barred by limitation. The eighth plea sets up that the claim of Schmidt was for unliquidated damages for tort; that, more than six years after the tort, he brought suit on it in the circuit court, to which suit the city, as was its duty, pleaded the bar; that this suit is still undisposed of; and that pending it the claim was presented to and allowed by the board.

We h...