43 Neb. 318 | Neb. | 1895
This is an original application for a writ of mandamus to compel the respondent-, treasurer of the city of York, to pay a warrant alleged to have been issued by the authorities of that city in favor of the relator for $1,789. It is alleged that this warrant was drawn on the water fund, and that the respondent has in his possession over $3,000 in said water fund applicable to the payment of the warrant. The warrant is dated August 15, 1889, and indorsed as having been presented on the same day, and not paid for want of funds. The answer admits that the treasurer now holds in his possession more than enough to pay the warrant, belonging to what is denominated the water fund, and derived from taxes collected under the levy of 1889; admits that the warrant was drawn as alleged; that it was presented and payment refused. As grounds for refusing to pay the warrant the respondent alleges: First, that the warrant does not in form comply with the requirements of the law; second, that there was no valid appropriation against which the warrant could be drawn; third, that no authority was ever granted to issue the warrant to the relator; fourth, that the city of York had entered into a contract with one Strang and another, granting to them a franchise for a system of water-works, contracting with them to lease a certain number of hydrants at a certain rental, and agreeing that in case Strang and McConnell should issue mortgage bonds upon said water works, a sufficient sum from the hydrant rentals to discharge the interest upon such bonds should be paid to the trustees under the mortgage as the rentals became payable; that this franchise passed to a corporation known as the York Water-works Company, which made its mortgage securing bonds amounting to $60,000, and that the- agreement of the city referred to was, by its clerk, certified upon such bonds; that the water-works company, about July 1, 1889, filed its claim
We have very briefly stated the nature of some of these ' defenses for the reason that it will not be necessary to con-aider them all. The referee appointed for the purpose has reported his findings of fact, the sufficiency of the.evidence to sustain which is not questioned. From these findings it appears that the claim was presented, allowed, and the warrant issued for the purpose stated in the answer; that the plaintiff purchased the claim after its allowance, and befóte the warrant was drawn, without actual notice of the issuance of the bonds; that the bonds and mortgage were
In the absence of a statute conferring special characteristics upon warrants the authorities are practically unanimous that such instruments are merely devices for properly drawing money from the treasury; they are little more than certificates of indebtedness. “The warrant is-not intended to constitute a new debt or evidence of a new debt, * * * but is the prescribed means the law has devised for drawing money from the county treasury.” (Dana v. City of San Francisco, 19 Cal., 486.) An indorsee may sue upon such warrant, not because he has title-under the law merchant, but because the indorsement amounts to an assignment of the debt upon which the warrant is issued. The auditing of claims and issuing war
The case of People v. Klokke, 92 Ill., 134, is very instructive with reference to the question before us. That case was an application to compel the county clerk to issue a warrant and to compel the treasurer to countersign and pay the same. There had been a disputed account between the county and the relator. In the course of the controversy a proposition was made to compromise by the payment of a certain sum, and a resolution had been passed authorizing the payment of another sum. Before the proposition to compromise had been accepted, the commissioners rescinded this resolution, and the court held that under the circumstances the clerk and treasurer would not be compelled by mandamus to issue or pay the warrant. It was further held that whether the board could rightfully rescind the order could not be determined in that action, but that the clerk and treasurer were merely ministerial officers, and whether or not the board could rightfully rescind the order, the resolution rescinding it deprived these officers of their only authority in the premises.
In People v. Johnson, 100 Ill., 537, a county warrant had been issued to one Comiskey. Comiskey indorsed it in blank and lost it. It subsequently came into the hands of the relator who purchased it for value without notice of
Applying these principles to the case before us, we think it plain that the writ must be denied. The issuing of the warrant did not change the nature of the indebtedness. The bank took it subject to all defenses which might have been urged had it been issued to the water-works company. Before its payment the council learned that it had been induced to allow the claim by reason of false representations made on behalf of the water-works company. It then directed its ministerial officer not to pay the warrant. Another action is pending whereby other persons seek to enforce payment to them of the same claim. It is not for the treasurer to review the action of the council and determine for himself whether or not a claim is justly payable to a particular person. He acts only under the authority given by the council acting in accordance with law, when he makes the payment. Without such authority a payment by him would be wrongful and subject him to personal liability. We cannot, in an application for a mandamus against him, undertake to try the disputed claims of the relator and the bond-holders. The bond-holders are not parties to this suit, and the city is not a party. The relator has not shown a clear legal right.
Whit denied.