Goldsmith v. Baker City
49 P. 973
Or.
1897
Check Treatment
Mr. Justice Bean,

аfter stating the facts, delivered the opinion of the court.

By section 852 of Hill’s Ann. Laws it is provided, in effect, that no execution shall issue оn a judgment recovered against a public corporation of the state, but that upon the presentation of a certified transcript of the docket, and. memorandum of the satisfaction thereof, the proper officer of the corporation shall draw an order on its treasurer for the amount 6f the judgment in favor of the person for whom the same was given, and which order shall thеreafter be presented for payment and paid with like effect and in like manner as other orders upon the treasury of the corporation. In view of this provision of the statute, the defendant contends that the only remedy on a city warrant is by mandamus, because all the plaintiff could obtain on a judgment in his favor in an action at law would be another warrant issued in the manner provided by the stаtute, and he would therefore be in no better position than before. But, although no execution can issue on a judgment recovеred against a municipal corporation, it does not follow that the holder of a city warrant like those in suit should be denied the right to sue the municipality thereon, and *252reduce his claim to a judgment. These warrants are but evidence of indebtedness, and constitute ‍‌‌​​‌​​‌‌​‌​​​‌​​‌‌​‌​‌‌​​​‌​‌​​​‌‌‌​‌‌‌‌‌‌​‌​​‌‍nо final adjudication, as against the city, of the claims which they represent. They afford prima facie evidence that the city is legally indebted to the holder thereof, but do not conclude it on that point. They are, in legal effect, nothing more than nonnegotiable promissory notes of the city, open to all defenses in the hands of Iona fide holders available as between the original parties: Clark v. City of Des Moines, 19 Iowa, 199 (87 Am. Dec. 423); Wall v. Monroe County, 103 U. S. 77. As said by Mr. Justice Field in the case last referred to: “There has been a great number of decisions in the courts of the several states upon instruments of this kind, and there is little diversity of opinion respecting their charаcter. All the courts agree that the instruments are mere prima facie, and not conclusive, evidence of the validity of the allowed claims against the county by which they were issued. The county is not estopped from questioning the validity of the claims, and when this is conceded the instruments conclude nothing as to other demands between the parties.” And to the same effect are 1 Dillon on Municipal Corporаtions, § 487; 1 Daniel on Negotiable Instruments, § 427; 1 Randolph ‍‌‌​​‌​​‌‌​‌​​​‌​​‌‌​‌​‌‌​​​‌​‌​​​‌‌‌​‌‌‌‌‌‌​‌​​‌‍on Commercial Paper, § 337. This being so, it would be competent for the defendant to urgе their invalidity as a ground for refusing to pay the warrants in question; and, as an action at law is the simplest and most efficient way of determining that question, no good reason can be suggested why the plaintiff may not resort to it, and reduce his demands to judgment, if he is able to do so, *253аnd thus conclude defendant’s liability thereon. The question as to what benefit he may derive from a judgment in his favor, or how he will proceed to enforce its payment, can cut no figure at this time. The right of action in the plaintiff, and the liability of defendant to suit, exist; and the cоurts cannot shut their doors against the plaintiff because he may have to resort to a proceeding by mandamus, in lieu of an exеcution, to enforce the payment of any judgment which he may recover.

As said by Mr. Justice Cole in disposing of a similar objection in Terry v. City of Milwaukee, 15 Wis. 545: “It may be said that a party obtaining judgment against the city on one of these school orders will be in no better condition than before, but will have to resort to a mandamus to compel the city authorities to levy and collect a tax to discharge it. This may all be true, but it still affords no satisfactory reason why he should be deprived of ‍‌‌​​‌​​‌‌​‌​​​‌​​‌‌​‌​‌‌​​​‌​‌​​​‌‌‌​‌‌‌‌‌‌​‌​​‌‍his action upon the orders. The remedy may not advance him much towаrds realising his money, but the counts cannot shut their doors against him on that ground. If they are just and legitimate claims against the city, he is entitled to his remedy, although that remedy may not be very effectual for the purpose for which it is invoked.” And in City of Connersville v. Connersville Hydraulic Company, 86 Ind. 184, where the question was squarely presentеd as to whether a city should be sued upon a warrant drawn upon the treasurer by the proper officers, or whether the holder of the warrant must proceed by mandate, the court, speaking through Mr. Justice Elliott, says: “There can be no doubt as to *254the right of the holder of a corporation order or warrant to maintain an ordinary civil action upon it, nor can there be any doubt that he is not bound to resort to the extraordinary remedy of mandate. It is well settled that ordinary actions may be maintained against municipal сorporations upon their contracts as well as for their torts. Demands -against a municipal corporation may be reduсed to judgment in like manner as similar demands against natural persons, and, where any ordinary civil action will attain this end, it is never necessаry to resort to the extraordinary remedy of mandate. It is true that the public property cannot be seized upon execution, but this does not affect the right to sue and obtain judgment. It is one thing to obtain a judgment, and another thing to enforce its collection.” This samе rule is recognized, either directly or indirectly, in the following cases: Travelers’ Insurance Company v. City of Denver, 11 Colo. 434 (18 Pac. 556); Clark v. City of Des Moines, 19 Iowa 199 (87 Am. Dec. 423); International Bank v. Franklin County, 65 Mo. 105 (27 Am. Rep. 267); Mills County National Bank v. Mills County, 67 Iowa, 697 (25 N. W. 884); Knapp v. Mayor of Hoboken, 38 N. J. Law, 371; Simmons v. Davis, 18 R. I. 46 (25 Atl. 691). The doctrine prevails generally in this country that a judgment against а public corporation cannot be enforced by an ordinary execution, but, notwithstanding this fact, the conflict in the adjudged cаses ‍‌‌​​‌​​‌‌​‌​​​‌​​‌‌​‌​‌‌​​​‌​‌​​​‌‌‌​‌‌‌‌‌‌​‌​​‌‍is not whether the holder of a city warrant may maintain an action thereon, but whether he must not do so, and reduce his claim to а judgment, before he is entitled to the extraordinary remedy of mandamus. *255In the courts of the United States a judgment at law is necessary to suрport such writ (Davenport v. Dodge County, 105 U. S. 287), and the same rule prevails in many of the states, while in others resort may be had to mandamus in the first instance. But, so far as we hаve been able to ascertain, the case of Cloud v. Town of Sumas, 9 Wash. 399 (37 Pac. 305), stands alone in holding that the remedy on an ordinary city warrant is exclusively by mandamus, and that no action thereon can be maintained. And we are not ‍‌‌​​‌​​‌‌​‌​​​‌​​‌‌​‌​‌‌​​​‌​‌​​​‌‌‌​‌‌‌‌‌‌​‌​​‌‍sufficiently impressed with the soundness of the reasoning of the cоurt in that case to follow it in opposition to the great weight of authority. The case of State v. Dodge County, 10 Neb. 20 (4 N. W. 370), would seem, at first glance, to announce the same doctrine as Cloud v. Town of Sumas; but this decision was predicated on the provisions of the statute authorizing the creation of the liability in suit, and therefore cannot be well regarded as in point in this discussion. It follows from these views that the court below was in error in sustaining the dеmurrer to the complaint, and the judgment must be reversed, and the cause remanded for such further proceedings as may be proper, not inconsistent with this opinion.

Reversed.