Symons v. United States ex rel. Masters

GIRBERT, Circuit Judge (after stating the facts as above). It is contended that the demurrer should have been sustained for want of an allegation in the petition or in the alternative writ that the cause of action on which the relator obtained his judgment was one of those which are enumerated in section 357, Lord’s Oregon Raws. It is true that section 361, under which this proceeding was had, refers to section 357, but does so only for the purpose of defining the term “public corporation” as used in section 361. Section 357 defines the causes of action which may be brought by public corporations, but it prescribes no limitation upon the causes of action which may be prosecuted against such corporations, and section 361 requires only that the judgment shall be for the recovery of money or damages against one of the classes of public corporations mentioned in section 357. Again, it is said that the alternative writ is defective for its failure to show whether the relator’s judgment was payable out of a special or a general fund. We do not see how the want of such an allegation is material, but, if the alternative writ is defective in that respect, the defect is cured by the answer to that writ, which says that the judgment is payable out of the general fund of the city. There was no error, therefore, in overruling the demurrer. [1] One of the defenses pleaded in the answer, and now relied upon, is that the municipal charter of Rainier prohibits the expenditure of money by the city, otherwise than from special assessments or funds, unless in pursuance of a special appropriation made for that purpose by ordinance, and that neither of the plaintiffs in error in their official capacity has been instructed by resolution or ordinance to countersign [111] a warrant íor the relator, or to issue municipal warrants to him, and that therefore the plaintiffs in error are powerless to act in the premises. The plain answer to this is the language of section 361. No prevision of the charter of a local municipality can avail to abridge or limit the provisions of that section, for it is a general law of the state and is paramount. Straw v. Harris, 54 Or. 424, 103 Pac. 777; West Lim v. Tufts, 75 Or. 304, 146 Pac. 986. [2] It is alleged as a further defense that there arc no present funds for the payment of the relator's judgment, that the taxing power of the city is limited, that the total maximum of taxes which can be lawfully levied will be required for the payment of the current expenses of the city, and that no money realized from taxes during the year 1918 can be devoted to the payment of the relator’s judgment "without seriously impairing the efficiency of the municipal government of said city; and it is contended that a writ of mandamus will not issue against city officials to require the issuance of warrants, where the city has no funds with which to pay the same, and that, even if the relator has the technical right to the issuance of warrants, the issuance thereof will place him in no better position than that in which he now is, and the rule is invoked that mandamus will not issue in a case where it will be ineffectual. All this is aside from the question which the record presents. The question here is not whether the city has money with which to pay the relator’s warrants when issued, or whether the relator has the power to compel the payment thereof. The sole question is whether or not these plaintiffs in error shall be required to do in their official capacity that which the law plainly commands them to do, and to take the step whicli is made by statute a necessary step to the realization of the relator’s demand. He, upon his part, has complied with the statute. After obtaining his judgment he satisfied the same, and lie presented to the plaintiffs in error the necessary record of judgment and satisfaction. He is clearly entitled to receive the warrants of the city for the amount due him. What he shall do with the warrants hereafter is, in this proceeding, no concern of the plaintiffs in error or of the court. The plaintiffs in error cite cases which hold that mandamus will not issue to compel a city treasurer to pay money when there is no money in the treasury. Sucli cases are not in point, for here it is not the purpose of the petition or of the writ to compel the payment of money. The purpose is to compel the performance of an act which is plainly required by statute, and the terms of the statute are controlling. Even if there were no such statute, the weight of authority is that the want of funds is no defense to a writ of mandamus to compel the issuance of warrants for debts that are due. Shattuck v. Kincaid, 31 Or. 379, 49 Pac. 758; State v. Irwin, 74 Wash. 589, 134 Pac. 484, 135 Pac. 472; State v. Hoffman, 35 Ohio St. 435; State ex rel. Jacobs v. Herdman, 28 Del. (5 Boyce) 555, 95 Atl. 549; People v. Secretary of State, 58 Ill. 90. The order for the peremptory writ is affirmed. Footnotes [1] t@E5>For other eases see same topic & KEY-NUMBER iu all Key-Numbered Digests & Indexes