Carruthers v. Astoria

On Motion to Dismiss. Mr. Justice Eakin delivered the opinion of the court. 1. The ground for this motion is that the holders of the warrants sought to be benefited by Ordinance No. 4416 are necessary parties to the suit. This is not a proceeding to cancel any warrants, but to enjoin the enforcement of Ordinance No. 4416, authorizing payment of warrants issued against a prospective special fund from the general fund. The rights of the warrant-holders under their warrants are not in any way attacked by the suit, and whatever relief or benefit they may anticipate from the ordinance is a mere gratuity and not a legal right. If the city is liable to them at all events and independently of their warrants, they will not be precluded by any decree entered in this suit if they are not parties to it. Furthermore, there are about 170 of such warrants issued against the prospective special fund, payable to bearer, and it is not known who are the holders thereof other than the one who has appeared herein. It is said in the syllabus in Mandeville v. Riggs, 27 U. S. (2 Pet.) 482, 7 L. Ed. 493): “It is well known that there are cases in which a court of equity dispenses with such a proceeding [presence of the stockholders], when the parties are very numerous and unknown; and the adoption of the rule would evidently impede, if not defeat, the purposes of justice”: Brown v. Trousdale, 138 U. S. 389 (34 L. Ed. 987, 11 Sup. Ct. Rep. 308). 2. Even if the warrant-holders were proper parties, which the writer doubts, they are not necessary parties. Plaintiffs’ appeal having been taken before the warrants wejre issued by the auditor under said Ordinance [508] No. 4416, the issuance of the warrants did not prejudice plaintiff’s appeal. The suit is to enjoin payment, as well as to prevent the issuance of warrants; and, if they were issued prematurely, that fact does not take the subject of suit out of the jurisdiction of the appellate court. If Ordinance No. 4416 was void, the city is acting at its peril. The power and authority of the city to pass the ordinance is the burden of this suit. The motion is denied.