154 Minn. 304 | Minn. | 1923
Appeal from an order overruling a demurrer to the complaint, the trial court having certified that the question presented was important and doubtful.
Nine causes of action are pleaded, substantially in the same form. The first relates to an appropriation of $5,000 to the mayor and city clerk, to be used by them to promote a baseball club. The second relates to an appropriation of $5,000 to the Eveleth Hockey Association for the support of a hockey club. The third, fourth, fifth and sixth relate to appropriations to the Eveleth Athletic Association, aggregating $32,500, to be used for sports and recreation. The seventh is for $8,073.38, appropriated to pay a bill of that amount due a lumber company for lumber furnished to construct a hockey rink built by the athletic association. The eighth relates to an appropriation of $10,000 to the athletic association to pay for labor and materials required to erect a hockey and skating rink owned by the association. The ninth relates to an appropriation of $14,088.16 to pay for board and lodging furnished by a hotelkeeper to men engaged by the athletic association as baseball and hockey players, and board and lodging furnished to the wives of the players and to •trainers, referees and umpires.
A taxpayer may sue to compel a restoration of funds illegally taken from the treasury of a municipal corporation. Bailey v. Strachan, 77 Minn. 526, 80 N. W. 694; Cone v. Wold, 85 Minn. 302, 88 N. W. 977; Stone v. Bevans, 88 Minn. 127, 92 N. W. 520, 97 Am. St. 506. Although law-making bodies are constantly enlarging the field of expenditure of public funds, so far as we know appropria
As to private corporations, the rule is that a stockholder may not bring an action for or in the name of the corporation, unless he has requested its officers to bring the action and they have refused, or unless it appears that it would be a useless ceremony to make such a demand. Rothwell v. Robinson, 39 Minn. 1, 38 N. W. 772, 12 Am. St. 608; Pencille v. State Farmers M. H. Ins. Co. 74 Minn. 67, 76 N. W. 1026, 73 Am. St. 326; National P. & P. Co. v. Rossman, 122 Minn. 355, 142 N. W. 818, Ann. Cas. 1914D, 830. The same rule must be applied where a taxpayer sues to vindicate the rights of a municipal corporation. Reed v. Cunningham, 126 Iowa 302, 101 N. W. 1055; McQuillin, Mun. Corp. § 2582. However, it is unnecessary to make a useless request. The question presented here is whether a request would have been- anything but an idle ceremony.
It is perfectly apparent that, if the mayor and eouneilmen were the persons who actually received the money, it would be futile to ask them to bring an action in the city’s behalf against themselves. But counsel for defendants emphasize the fact that the money came directly or indirectly into the hands of other persons, who are not parties to this action. They assert that it is a departure from sound public policy to permit plaintiff to maintain an action prosecuted solely for the benefit of the city, without joining as defendants all
The argument leavés out of consideration the position the city would occupy if such an action were commenced. Its officers sanctioned the withdrawal of the money from the treasury and its expenditure for the purposes stated. To prevail in the action, the city would have to make proof of a state of facts from which it might be inferred that there had been repeated violations of a penal statute of this state. Sections 8814, 8815, Gr. S. 1913. Under all the circumstances, it would be expecting too much of human nature to suppose that these officers would prosecute the action vigorously or earnestly. It is inconceivable that there would be anything but a half-hearted prosecution. But if the defendants have been convinced that such an action should be brought, there is nothing to prevent them from bringing it now. If it is true that money has been illegally appropriated, the defendants, or those who received it, may return it to the city and have a perfect defense.
Our views accord with those expressed by the trial judge in overruling the demurrer. He said:
“It would seem to the court that in a caise of this kind, it would be a mere mockery to require a taxpayer * * * to make a demand upon these same officers to bring an action * * * as officers against themselves as individuals to recover sums of money that they have illegally spent.”
The defendant surety companies are bound to the city. This action is prosecuted for the benefit of the city. The terms of the
Order affirmed.