Winona v. Whipple

• Decision Date: 11 August 1877
• Citation: 24 Minn. 61
• Parties: City of Winona v. William J. Whipple and others
• Court: Minnesota Supreme Court

24 Minn. 61

City of Winona v. William J. Whipple and others

Supreme Court of Minnesota

August 11, 1877

[Syllabus Material]

This action was brought in the district court for Winona county by the city of Winona, against the defendant Whipple, as principal, and the defendants Henry W. Lamberton, Thomas Simpson, Frances M. Cockrell, Joseph A. Prentiss and Herman E. Curtiss, as sureties, upon the official bond of the defendant Whipple, as city treasurer of the city of Winona. The plaintiff demanded judgment against the defendants for the sum of $ 1,617.50, with interest and costs. The case was tried by the district court, for the county of Winona Mitchell, J., presiding, who found, among other facts, that the defendant Whipple, while treasurer of the city of Winona collected from applicants for license to sell intoxicating liquors within the said city the sum of $ 6,470, which he receipted for as said treasurer, entered the sum upon the books of the treasury, and deposited it with the other funds of the city; that he subsequently reported the receipt of this sum to the city council, in common with the general city fund, and charged the city the usual percentage for the collection of the whole of said sum of $ 6,470, but credited himself with the sum of $ 1,617.50, paid to the treasurer of the county of Winona; that said percentage was duly paid the defendant for the collection of said money, but that the said sum of $ 1,617.50 was paid over to the county treasurer without the authority of the mayor, recorder or city council. The court further found, as a conclusion of law, that the plaintiff was not entitled to recover in this action, and motion for a new trial having been denied, the plaintiff appealed.

Order affirmed.

Wilson & Taylor, for appellant.

The defendant claims to have acted under the authority of Sp. Laws 1875, c. 12, which purports to amend the proviso at the end of the first subdivision of section 2 of chapter 1 of the charter of Winona; but it is clear that this amendment was inoperative, as there was no such proviso in that section of the charter. Moreover, the right to the profits arising from the licenses was vested in the city, and the disposition of the fund provided for by the charter could not, therefore, be changed without the consent of the plaintiff. Aberdeen v. Aberdeen, 13 Smedes & Marshall, 644; Aberdeen v. Sanderson, 8 Smedes & Marshall, 663. When the money was paid into the city treasury it became the money of the city, and could, thereafter, only be paid out on the order of the mayor and recorder, duly authorized by the vote of the city council, (Sp. Laws 1867, c. 20, sub. c. 4, §§ 5, 6; Poor v. Gains, 3 Brevard 396;) the city thereafter was alone legally liable for the same, (Comm. v. Phila. 27 Pa. 497; Bullwinkle v. Guttenburg, 17 Wis. 601; Tunbridge v. Smith, 48 Vt. 648; Cooley on Taxation, 498, 599,) and the defendant, a mere municipal officer, (People v. Solomon, 54 Ill. 39,) had no dominion over the fund. Dickens v. Jones, 6 Yerg. 483; Critchfield v. Wood, 16 Ala. 702; Taylor v. Board of Health, 31 Pa. 73.

Again, the defendant is estopped by his report to the city council, and the acceptance of his fees, for the collection of the fund in dispute. Bigelow on Estop. (2d Ed.) 503; 2 Smith Lead. Cas. 133-145, 741-2, 796; Sedgw. on Stat. Con. (2d Ed.) 86, 87, 88; Board v. Board, Law Rep. 9 Q. B. 48; Smith v. Smith, 14 Grey 532; Van Hook v. Whitlock, 26 Wend. 43; Hyde v. Baldwin, 17 Pick. 308; Ferguson v. Landram, 5 Bush. 230, 235-7; Bodemund v. Clark, 46 N.Y. 354; Mariner v. Mil. & St. P. R. Co. 26 Wis. 84, 89; Thompson v. Howard, 31 Mich. 309; Preston v. Jones, 9 Pa. 456; Burlington v. Gilbert, 31, Iowa, 356, 364-7; McGregor v. Reynolds, 19 Iowa 228; Southland v. Perry, 21 Iowa 488; Franklin v. Twogood, 18 Iowa 515; Hodson v. Life Ins. Co. 97 Mass. 144; Bank v. N. W. P. 35 Iowa 226; Pierce v. Tuttle, 58 N.Y. 650; Barker v. White, Id. 205, 214; Frierson v. Branch, 3 Cent. Law Jour. 334. Even if it therefore could be claimed that the defendant was authorized, under the amendment of the charter, to act as the agent of the county, still it is clear under the circumstances that this construction would not aid the defendant. Neither is the defence admissible in this case that the defendant was not authorized to collect for the city more than three-fourths of the said license money. Cooley on Taxation, 498, 499, n. 5; Bullwinkle v. Guttenberg, 17 Wis. 601; Waters v. State, 1 Gill. 302; Smythe v. Titcome, 31 Me. 272; Neal v. School Comr's, 27 Me. 221; State v. Balt. & O. R., 34 Md. 344; State v. Cunningham, 8 Blackf. 339. Neither is the plaintiff entitled to merely nominal damages if his right of action be once established. Evarts v. Burgess, 48 Vt. 205; Tunbridge v. Smith, Id. 648.

Lloyd Barber, for respondents.

It is clear, from the whole context of chapter 13 of the Special Laws of 1875, that the legislature intended to amend section 2 of chapter 4, instead of section 2 of chapter 1, of the city charter. Resort may therefore be had to implication in determining the legislative intent, (Sedgw. Stat. and Con. Law, 250; Cooley Con. Lim. 54, 57, 184; Potter Dwar. Stat. Con. 127, 194, n. 13, 202, n. 19, 209, n. 22; McCartee v. Orphan Asylum, 9 Cow. 437; Dodge v. Gridley, 10 Ohio 173; McMahon v. R. Co. 5 Ind. 413; McNamara v. R. Co. 12 Minn. 390; Bigelow v. Railway Co. 27 Wis. 486; Durousseau v. U. S. 6 Ct. 314; Opinion of the Justices, 22 Pick. 573,) and if the mistake is apparent upon the face of the statute, and the intention can clearly be ascertained from the whole statute, then such intent should be allowed to prevail. Potter Dwar. Stat. Con. 183, n. 5; Moody v. Stephenson, 1 Minn. 289, (401;) Karns v. Kunkle, 2 Minn. 270, (316;) Nichols v. Halliday, 27 Wis. 406; People v. King, 28 Cal. 266; Smith v. People, 47 N.Y. 335; Shrewsbury v. Boylstown, 1 Pick. 105; Turnpike Co. v. McKean, 6 Hill 616. It is well established, also, that the legislature had the right to change the charter of the city at any time, and in any particular. 1 Dill. on Municipal Corp. c. 4, § 30. The money likewise paid to the county never belonged to the city, and if an order was necessary the plaintiff has sustained no damage, because the money has been paid to the party legally entitled to it.

OPINION

Berry, J.

By the provisions of section 2, sub-chapter 4, of the amended charter of the city of Winona, (Sp. Laws 1867, c. 20,) the city council is authorized to grant licenses to venders of intoxicating liquor, and to fix the price of the same at from $ 10 to $ 100. Though not so expressly enacted, it is to be inferred that the money to be paid for licenses is to be paid into the city treasury, and to be the property of the city.

By Sp Laws 1875, c. 13, § 1, it is provided "that section 2 of chapter 1 of said amended charter be amended so that the proviso at the end of the first subdivision shall read as follows: Provided, the city council shall have the exclusive right to license persons vending * * * intoxicating liquors within the limits of said city, and persons so licensed shall not be required to obtain a license from the board of county commissioners," etc. Section 2 of the same chapter provides that "three-fourths of the money received from the licenses so granted shall be paid to the treasurer of the city of Winona,...