168 P. 810 | Okla. | 1917
This case presents error from the district court of Payne county, wherein the plaintiff in error, as assignee of the Dudley Construction Company, sought by mandamus to compel the mayor and commissioners of the city of Stillwater to deliver to it certain improvement bonds issued conformably to the provisions of article 12, c. 10, Revised Laws 1910. In answer to the alternative writ the city officials attempted to justify refusal to deliver the bonds solely on the ground that the contractor had failed to perform the contract by refusal to pay certain claims for labor and material. Numerous persons asserting demand against the Dudley Construction Company for labor and materials, and one who declared upon a sub-contract for the paving of a street upon which his property abutted, were permitted to intervene. On trial, the court below, *236 made the following, among other, findings of fact:
"(1) That said Dudley Construction Company has failed to perform its contract in the matter of paying the claims of laborers and materialmen arising out of the prosecution of the work, involving said contract, and would not be entitled to a delivery of the bonds by reason of such failure; (2) that the assignee of said Dudley Construction Company, the plaintiff herein, stands in the place of said Dudley Construction Company, and is therefore not entitled to a delivery of said bonds."
The writ was denied.
The undisputed facts necessary to a determination of the case are that the mayor and commissioners of the city of Stillwater, having determined to improve certain streets by regular proceedings, issued improvement bonds, and entered into a contract with the Dudley Construction Company, by the terms of which such bonds were to be delivered to the contractor at par value in payment of the amount due it on such contract; that the improvements were made according to contract and accepted by the city, and a portion of such bonds delivered; that the remainder of the bonds of the par value of $15,000, was retained by the mayor and commissioners, who, after proper demand therefor, refused to turn the same over to the plaintiff.
We are of opinion that the judgment of the trial court, denying a peremptory writ of mandamus, constituted prejudicial error. It is contended by defendants in error that the writ should not go for the reason that the plaintiff in error had a plain, speedy, and adequate remedy in the ordinary course of law. Obviously no action for debt or breach of contract would lie against the city or its mayor and commissioners, for the reason that the contract price of the improvements in question was payable alone in the specific bonds, delivery of which is sought to be compelled, and neither these bonds nor the obligation to pay for such improvements is or could become a charge against the city payable out of its general funds. The bonds were issued pursuant to section 636, Rev. Laws 1910, which provides:
"Said bonds, or such portion thereof as may be necessary to provide for the payment of the assessments, interest, and costs remaining unpaid, shall be sold at not less than par, and the proceeds thereof applied to the payment of the contract price of said improvement and the other expense incurred by the city in connection with such improvement or issuance of such bonds; or such bonds, in the amount that may be necessary for such purpose, may be turned over and delivered to the contractor at par value in payment of the amount due him on his contract. * * *"
By section 635 it is provided:
"* * * Which bonds shall in no event become a liability of the city issuing the same."
Under the terms of the statute, the municipal officers were empowered either to sell the bonds and pay for the improvements out of the proceeds, or to deliver such bonds to the contractor at par in satisfaction of the amount due him on his contract. By entering into the contract in suit such officers chose the alternative of paying the contractor by delivery of the bonds. The specific bonds provided for by the contract to be delivered had been duly issued, and delivery thereof as provided by the statute was refused solely for the purpose of coercing payment by the contractor of certain claims of laborers and materialmen, for which the municipality was not bound and about which it was not legally concerned. Wilson v. Nelson,
"A ministerial act is one which a public officer or agent is required to perform upon a given state of facts in a prescribed manner in obedience to the mandate of a legal authority and without regard to his own judgment or opinion concerning the propriety or *237 impropriety of the act performed." Merrill on Mandamus, p. 30.
In City of El Reno et al. v. Cleveland-Trinidad Paving Co.,
"It being settled that all of the proceedings of the city authorities up to the time of letting said contract were regular, after the letting of the contract no discretion of any kind is vested in the city or its municipal council. Whether its action in declaring a necessity to pave, etc., or in ascertaining that no sufficient protests had been made and determining to proceed with the improvement is legislative or administrative does not concern us in this connection. After the contract has been let, the statute is mandatory in its terms that the council shall appoint appraisers, shall levy an assessment, shall provide for the issuance of bonds, that the mayor and clerk shall sign and attest the bonds, that the clerk shall publish notice of the time when the first assessment becomes due and payable, and shall certify to the county treasurer such assessments as are not paid within the time specified. All of these duties are ministerial and the council, mayor, or clerk are left without any discretion as to whether they * * * shall not perform them."
"That mandamus will lie to compel a public officer to perform a ministerial duty, one that involves no exercise of judgment or discretion, is too well settled to require the citation of authorities." Smock v. Farmers" Union State Bank,
In Commissioners of Noble County v. Hunt Co.,
"The county commissioners having accepted, as completed according to contract, a road improvement, ordered by them to be made in pursuance of statutes authorizing payment therefor to be made in bonds of the county to be issued to the contractor on completion of the improvement and acceptance thereof, and the commissioners refuse to deliver to the contractor the bonds to which he is entitled, mandamus, and not appeal, is the proper remedy for redress."
And in the body of the opinion it is said:
"Where, as in this case, the contract specifies that the improvement is to be paid for in bonds of the county, upon estimates rendered or the completion of the work, and it is accepted by the board of county commissioners, it is the duty of the commissioners to deliver them. This duty is ministerial, and in no way involves judicial discretion. Hence mandamus, upon refusal, is the appropriate means to enforce the performance of the duty."
In Smalley v. L.R. Yates, Mayor of the City of Hiawatha, et al.,
"1. Mandamus lies in all cases where the plaintiff has a clear legal right to the performance of some official or corporate act by a public officer or corporation, and no other adequate, specific remedy exists.
"2. When a person desires to be placed in the possession of a right illegally and unjustly withheld from him, the writ of mandamus is a proper remedy to give the thing itself, the withholding of which constitutes the injury complained of.
"3. Where a city of the second class, through its mayor and council, enters into an agreement to execute and deliver to a lawful purchaser thereof certain waterworks bonds of the city * * * and the purchaser of such bonds fully complies with all of the terms of the agreement upon his part, and the mayor and council refuse to comply with their official duty in that respect, held, mandamus will lie to compel the mayor and council to execute and deliver the bonds to the purchaser of the same according to the terms of the agreement of the parties."
In Chicago, K. W. R. R. Co. v. Board of Commissioners of Chase County et al.,
"It appears, therefore, that the plaintiff has earned the bonds of the county, and was entitled to the delivery of the same after June 1, 1887, upon demand."
— and the writ issued.
In A., T. S. F. R. R. Co. v. County of Jefferson,
"But it is insisted that whatever rights the plaintiff may have must be enforced in a different action; that no mandamus will ever issue to command the doing of an act which is forbidden to be done by a valid injunction order of a competent court, because thus the party would be placed between two fires, and liable to punishment for contempt in either event. It is said that the writ of mandamus lies within the discretion of the court, and that the mere fact that a party has rights will not necessarily entitle him to the writ; that no court will exercise this discretion in such manner as to place the defendant in jeopardy of punishment. That this writ, originally a prerogative writ, and solely a matter of discretion, still partakes of its original nature so far that it yet remains largely within the discretion of the court cannot be doubted. State v. Marston,
In High's Extraordinary Legal Remedies, § 357, it is said:
"So, too, when services are rendered to a county, to be paid for in the bonds of the county, and the work is accepted by the proper county officers, whose duty it is to deliver the bonds in payment, such duty may be enforced by mandamus; it being of a ministerial nature and involving the exercise of no discretion."
And again it is said by the same author (section 389):
"The propriety of the writ of mandamus, as a means of compelling delinquent municipalities to discharge liabilities which they have incurred under stock subscriptions in aid of railways is thus shown to be fully established. Nor is the interference of the courts for this purpose confined to cases where the bonds or obligations of the municipal corporation have already been issued but the relief may also be granted to enforce the subscription and to compel the issuance of the municipal securities pledged in aid thereof. * * * In such case, a clear, legal right is shown on the part of the railway company, involving a corresponding official duty on the part of the municipal authorities, for the performance of which mandamus affords the only adequate and specific remedy."
See, also, School Dist. No. 2 v. School Dist. No. 1,
The trial court erroneously permitted claimholders against the Dudley Construction Company to intervene in the cause. The only pleadings or written allegations permitted in a mandamus proceeding are the writ and answer. Section 4915, R. L. 1910.
It follows that the judgment of the trial court should be reversed and the cause remanded, with directions to the trial court to issue the peremptory writ of mandamus requiring the delivery of the bonds to plaintiff in error.
BY the Court: It is so ordered. *239