38 P.2d 617 | Wyo. | 1934
This is an action for mandamus brought on the relation of Robertson Investment Company to compel defendant, county treasurer of Natrona County, to pay relator $7500 evidenced by three county certificates of indebtedness for $2500 each.
The petition alleges the following facts: On June 7, 1928, the Board of County Commissioners of Natrona County, adopted a resolution whereby three attorneys at law were retained and employed to represent Natrona County in certain actions then pending in the district court. On the same day each of the attorneys so employed presented to the board his claim for $2500, the sum required to be paid under the provisions of the resolution of employment. The claims were allowed and certificates of indebtedness issued payable from revenues for 1928. The county treasurer at first refused to register the certificates but on June 9 did so in obedience to peremptory writs of mandamus. The payees on June 9, 1928, for value assigned the certificates to banks, who in March, 1929, assigned them to relator. The defendant refuses to pay the certificates though they have been presented and payment demanded, and the funds on hand arising from the collection of the taxes for the year 1928 are sufficient to pay them.
The resolution of June 7, 1928, mentioned in the petition, is attached as an exhibit. It recites the bringing of four actions in each of which the plaintiff sought "to restrain and enjoin the Board of County Commissioners of said county from auditing, allowing or *426 approving" certain claims against the county; that the county attorney "declined and refused to defend the county of Natrona, and its interests, in the said actions"; that the board "deemed it necessary and proper to retain and employ said [three] attorneys for the successful defense of said actions and each of them, and to protect the interests of the county"; that it had been agreed that each attorney shall be paid $2500 "as retainer fees, and for and on account of legal services in said actions," and that "such further and additional reasonable compensation be paid to said attorneys respectively, at such time and in such amounts as may be hereafter agreed upon by and between this board and said attorneys."
The answer of the county treasurer, as defendant in the present action, contains admissions of some and denials of other allegations of the petition, and then states in separate paragraphs seven further defenses numbered two to eight. The plaintiff demurred to each of these separate defenses on the ground that it was insufficient in law on its face. The demurrer was sustained except as to the defense numbered seven. The plaintiff refused to plead further, and judgment for defendant was entered. The plaintiff brings the case here by proceeding in error, alleging that the district court erred in overruling the demurrer to the seventh defense.
In the seventh defense it is alleged that by resolution of the board of county commissioners made and adopted by said board on September 7th, 1928, the resolution of June 7th, 1928, if any there was, and the certificates of indebtedness issued thereon, were cancelled and rescinded, and the defendant county treasurer was directed to refuse payment of said certificates. A copy of the resolution of September 7, 1928, is attached as an exhibit. The resolution recites that a *427 previous resolution "was spread upon the minutes" of the board at a meeting held June 7, 1928, "which purported to employ" the three attorneys to represent Natrona County in certain actions in which the defendants were the board of county commissioners and various officials of the county and other individuals, and that all such actions were "for the purpose of obtaining injunctive relief against the illegal expenditure of funds of Natrona County, and to obtain reimbursement for Natrona County of funds alleged to have been illegally expended." It then recites the auditing and allowing of the three claims of the attorneys "as retainer fees" in said actions, and the issuance of the certificates of indebtedness. It is then declared that:
"This Board finds the employment of the above named attorneys in the cases above described to represent Natrona County was and is unnecessary; that the County Attorney of Natrona County, Wyoming, appeared in said actions and represented Natrona County therein; that it was and is contrary to the interests of Natrona County for Natrona County to make any defense whatever in any of said actions, and that the interests of Natrona County in said actions are identical with those of the plaintiff and adverse to those of all other defendants in said actions; that the above named attorneys represented other defendants in said actions whose interests were and are adverse to those of Natrona County at the same time that said attorneys purported to represent Natrona County; that the fees purported to have been allowed to said attorneys as retainer fees in said cases, considered in the light of the amounts involved in said cases, the number of parties defendant, and the work actually performed, are exorbitant and extortionate; that the employment of said attorneys, if any such employment was in fact ever made, was and is illegal and fraudulent; that the allowance of said claims to said attorneys for alleged services in said actions was and is illegal and fraudulent; that the issuance to said attorneys of said certificates of indebtedness hereinabove described was and is *428 illegal and fraudulent, and said certificates are illegal and fraudulent."
The resolution then purports to rescind (1) the action of the board with reference to the resolution of June 7, (2) any contract between Natrona County and the attorneys, and (3) the action of the board in allowing the attorneys' claims for fees. It is declared that the three certificates of indebtedness (describing them) are cancelled; the county clerk and county treasurer are "instructed and directed to cancel said certificates upon the records of their respective offices" and "the county treasurer is * * * further instructed and directed to refuse payment of said certificates, or any of them if presented to her for payment." It is further resolved that the attorneys, if ever employed to represent the county, are discharged, and that thereafter the only attorney authorized to represent the county in said actions shall be the county and prosecuting attorney.
The question for decision is whether or not the resolution of September 7 was justification for the treasurer's refusal to pay the certificates of indebtedness in the hands of a purchaser for value.
It is argued that the allowance of the claims had the conclusive effect of a judgment which became final on the delivery of the certificates and could not be impeached in this case except by pleading and proving facts that would authorize a court to restrain the execution of a judgment. That the allowance of a claim by a municipal auditing board has the full effect of a judicial determination by a court finds but little support in the authorities; but many cases hold that the action of the board is final and conclusive as to the facts which it had a right to pass upon, and that it cannot be impeached except for fraud, illegality or, perhaps, mistake. See: Sioux County v. Jameson,
The board of county commissioners, in auditing claims against the county, is not exercising judicial power. See, State ex rel. Jeffrey v. Burdick,
The statutes declare that each county "shall be a body corporate and politic" empowered, among other things, "to make all contracts and do all other acts in relation to the property and concerns of the county necessary to the exercise of its corporate or administrative powers," and that "the powers of a county as a body politic and corporate shall be exercised by a board of county commissioners." R.S. 1931, §§ 29-301, 29-302. The county may sue and be sued in the name of the board. §§ 29-301, 29-305. The board's specifically enumerated powers include the power at any meeting:
"To make such orders concerning the property belonging to the county as they may deem expedient.
"To examine and settle all accounts of the receipts and expenses of the county, and to examine, settle and allow all accounts chargeable against the county, and, when so settled and allowed, they may issue county orders therefor as provided by law. * * *
"To represent the county and have the care of the county property and the management of the business *431 and concerns of the county, in all cases where no other provision is made by law." § 30-605.
Claims against the county must be presented for "audit and allowance" to the board, and all claims when allowed are paid by a county warrant or order drawn by the board on the county treasurer, or by certificates of indebtedness. §§ 30-102, 30-104. Certificates of indebtedness may be issued "for the current expenses of the county" when "there are not sufficient funds in the county treasury to meet the obligations of the county as they mature." § 30-104. They are in effect orders or warrants on the treasurer for payment when funds for that purpose are available.
When a claim against a county is disallowed, the claimant may appeal to the district court. §§ 30-611, 30-612. But the decision of the county commissioners rejecting a claim is not treated as an adjudication which, if not appealed from, becomes binding on the parties. The claimant by failing to appeal does not lose his right, but may sue on his claim. Boswell v. County Commissioners,
The board exercises all the corporate and administrative powers of the county, including of course the making of contracts for services. When it has made a legal contract, we assume it can take no ex parte action that can have the effect of depriving a party to the contract of any vested right under the contract. We may assume in this case that the resolution of September 7 did not have the effect of working a rescission of the contract of June 7. The board acts for the county not only in making the contract but also in performing, which, as in this case, may mean paying the money when due. It may refuse to perform without impairing the obligation of the contract. See St. Paul Gas Light Co. v. St. Paul,
It is well known that boards of commissioners must often act hastily and on inadequate information. Public policy would seem to demand that they have power to prevent payments on claims to which the county may have a defense. See, Sears v. Stone County,
It is conceded that the answer would state a good defense if it pleaded facts showing illegality or fraud. The defendant, in the defense in question, does not undertake to plead fraud or illegality. She alleges that the Board of County Commissioners on September 7 adopted a resolution which, among other things, directed defendant to refuse payment of the certificates. The charges of fraud and illegality are made by the board in the resolution. Defendant does not even allege that those charges are true, and we do not think it was any part of her duties to decide whether or not they were true. The resolution contains recitals sufficient, we think, to inform the defendant, as county treasurer, that the county itself through its board of commissioners was contending that it had a defense or defenses that might be urged in an action against the county on the certificates or on a claim for compensation for services. And when the resolution was thus pleaded, and admitted by the demurrer, the court, we think, was *434 justified in finding from the pleadings that it was not the duty of the treasurer to pay the certificates in disregard of the direction of the board. It appeared that the claims were allowed in advance of performance of the services contracted for. It was charged that the services were unnecessary, and for the purpose of opposing the interests of the county; that in the actions in which the services were to be performed the attorneys represented other defendants whose interests were opposed to the interest of the county, and that the fees agreed to be paid were exorbitant and extortionate. In general terms it was charged that the whole transaction was illegal and fraudulent. The attorneys were discharged while apparently the cases which they were employed to defend were still pending, and before the contract on their part was fully performed.
It is probably true, as plaintiff contends, that the resolution would be insufficient as a pleading of a defense of fraud. It may be true, also, that it does not state with sufficient particularity facts to show illegality. But the resolution itself is not a pleading, and we have seen no authority that would justify us in holding that it should have been disregarded by the treasurer merely because it did not contain allegations that would have been necessary to support charges of fraud or illegality in a pleading. Even if the general charges of fraud and illegality should be disregarded, it would be difficult to dispose in such summary way of another defense suggested by the resolution, and which, under Petters Co. v. Town of Rock River, supra, might be relied on. If, as charged, the attorneys "represented other defendants in said actions whose interests were and are adverse to those of Natrona County," it is likely the discharge of the attorneys before they had fully performed their contract was justified, and if their discharge was justified they may not be entitled to the whole amount agreed to be paid in advance "as *435 retainer fees and for and on account of legal services" but only to the reasonable value of the services actually performed. We, of course, are not expressing an opinion on any question that may be raised by defenses that the county may plead if it hereafter be sued by the holder of the certificates. In our view, the resolution of the board need not be treated as a pleading. It was justification for defendant's refusal to pay the certificates if it gave notice that the county was forbidding payment on the ground that it had a defense which it should have an opportunity to present in an action to which it is a party. Perhaps, on authority of some of the cases cited below the resolution went much further than necessary. That the county had such a defense might have been inferred from the mere direction to the treasurer to refuse payment, or from the fact that the board claimed the right to rescind the allowance as previously made. The present case may be disposed of by holding that the treasurer ought not to be coerced by mandamus to pay certificates when payment is forbidden by a resolution of the board showing that the county may have a defense, and that, in such a case, it is not material that the recitations of the resolution do not meet the requirements of a pleading.
The plaintiff, however, contends that if the county has a defense to the certificates of indebtedness, the treasurer, when required to answer in mandamus, should have pleaded that defense in order that it might be litigated in the mandamus action. Three Washington cases are cited to show that in at least one jurisdiction suit cannot be maintained on a municipal warrant, but that the sole remedy is by mandamus action in which all defenses may be tried. Cloud v. Town of Sumas,
We may concede that, if the board of county commissioners were not objecting to payment, and the treasurer refused payment because she believed the certificates were void, she, when sued in mandamus, should be required to plead the facts showing invalidity, and the issue so raised would be tried in the mandamus case. That may be the effect of our decision in Appel v. State, supra. And see, State v. Clark,
When, however, the board makes an order forbidding payment, claiming a defense on behalf of the county which it represents, we think there is no good reason for requiring the treasurer to assume the duty of alleging and proving the county's defense, except, perhaps, in those jurisdictions where the allowance of the claim is given the effect of a judgment. Plaintiff, in support of its contention on this point, cites two cases in which mandamus was issued to require ministerial officers to issue warrants after the board had undertaken to reconsider its action allowing the claims. In both these cases it was apparently decided that a defense claimed by the county or city should be determined *437
in the mandamus case. State ex rel. Manix v. Auditor,
In the Ohio case a contract for the purchase of real property by the county had been fully performed by the vendor by delivery of a deed which had been accepted by the county and placed of record, and an order reciting these facts directed the auditor to issue a warrant for the purchase price. Thereafter the county commissioners attempted by resolution to rescind previous resolutions purchasing the land and ordering the warrant. The auditor refused to issue the warrant, and by mandamus was compelled to do so. The case was not decided on the pleadings, but after the taking of evidence from which it was found that the contract was valid and fully performed by the vendor; that there were no considerations of public policy, fraud, abuse of discretion, imposition or failure of consideration. It seemed clear to the court that in an action at law against the county for the purchase price there could be no defense and that in an action of specific performance the commissioners could answer that they had fully performed the contract on their part. Upon the facts it seemed to be clear that the relator was entitled to his money, but relief by mandamus was based on grounds not so free from doubt. It was apparently held not only that the resolution ordering the issuance of a warrant had the effect of a judgment, but also that the rescission of the resolution impaired a contract right of relator. There was a vigorous dissent by two justices. In the dissenting opinion views that seem to us to be in accord with principles applicable to the case at bar were stated thus:
"I wish also to express my unqualified dissent to the proposition that the right of the relator to demand and receive the purchase price of this sale is resadjudicata — that the order of the commissioners upon the auditor *438 to draw a warrant on the treasurer therefor in favor of relator has the force and effect of a judgment at law, which can not be collaterally impeached or modified by the commissioners after the term at which it was made. I deny that the order of the board of commissioners has any such force and effect. Instead of acting judicially in the matter, it was simply acting as a contracting party, not in making, but in executing the contract. And the order of revocation was not a rescission of the contract, but a refusal to execute it. If the right of the auditor to pass upon grounds of revocation did not exist, the ground upon which the revocation was made is immaterial in this action."
We note that in a later case in Ohio, mandamus to compel the issuance of a warrant was refused because of the pendency of an injunction action against the auditor to prevent the issuance of the warrant, though the relator in mandamus was not a party to the injunction case and no order of injunction had been issued. State ex rel. v. Zangerle,
In McConoughey v. Jackson, supra, mandamus was issued to compel a city clerk to countersign and deliver a warrant in payment of a claim that had been allowed by the city board of trustees. The answer of the clerk alleged, among other things, that "the board of trustees repealed and rescinded the allowance of the claim and order to draw the warrant"; and "that the matter is still under consideration by the board of trustees" who "determined the warrant had been ordered drawn through mistake, inadvertence and misapprehension, rescinded the former action, and ordered that the warrant" be cancelled. It was held on demurrer that the answer was insufficient, and on appeal the decision was affirmed. The court followed earlier California cases holding that the allowance of the claim was a judicial act, and decided that mandamus should issue in the *439 absence of a properly pleaded defense to the claim "treated as a contract."
In those jurisdictions where the allowance of a claim is not given the effect of a judgment, the cases support the view that when a municipal board of audit has ordered the issuance of a warrant and thereafter has rescinded its order or directed the treasurer not to pay the warrant, the treasurer is justified in refusing payment without deciding for himself that the board had sufficient grounds for making the order by which it forbids payment. The court in denying mandamus in such cases does not decide that the county has a good defense, but only that the last order should be obeyed until the municipal body has an opportunity to present its defense in a proceeding to which it is a party.
In Matter of Equitable Trust Co. v. Hamilton,
Frankl v. Bailey,
"Now the county court, having charge of the county funds, has directed the county treasurer not to pay this alleged obligation of the county, which is an indirect way of disavowing the county's liability; and, as the warrant is not based upon an order having the binding effect of a judgment against the county, we can see no reason why the treasurer is not precluded by the prohibitory order from using the county funds in discharge of the warrant. It is the duty of the treasurer to disburse the funds upon `the proper orders, issued and attested by the county clerk,' but here is a warrant which the court has determined — and we must presume for some legitimate reason — should not be paid, and therefore not proper to be honored by the treasurer."
In Commonwealth ex rel. v. Sholtis,
In Burke v. Gromley,
"It is true there are cases in other jurisdictions which hold that a proceeding of that kind is final, but I think I ought not so to hold in the absence of any binding decision in this state. It is settled by a decision of our Court of Errors and Appeals that a taxpayer may enjoin the payment of an unjust bill by a city, although the city authorities are willing to pay it. Lodor v. McGovern, 3 Dick. Ch. Rep. 275. The effect of that decision is to deprive the action of the city *442 authorities of the element of finality which is relied upon in this case by the relator; for if a taxpayer may bring a bill in equity for an injunction to restrain the payment until the right thereto shall have been established by a suit at law, it is a necessary conclusion that the city authorities themselves would have the right to review their own prior action in case their approval of the bill was wrongful. Whether in fact the charges are grossly exorbitant, as the mayor asserted and as the new board seems to have thought was at least probable, cannot be decided on this application. No evidence has been taken upon the subject, and while there is a presumption in favor of a bill that has been duly audited (Butts v. Hoboken, 9 Vroom 391), there is an equal presumption in favor of the validity of the action of the new board. Which board was right can only be determined by an action at law."
Murphy v. Reeder Township Treasurer,
See, also, State ex rel. Bank v. Cook, 43 Nebr. 318, 61 N.W. 318; People ex rel. Harms v. Klokke,
In addition to the above mandamus cases there are at least two decisions that apply the same principles in actions against treasurers who paid warrants in disregard of orders directing them not to pay.
Harrison County v. Ogden,
In County of Jackson v. Fayman,
It is contended that in view of § 30-1114, the treasurer's duty to pay certificates valid on their face could not be affected by the resolution directing him not to pay. The cited section makes it a misdemeanor for the treasurer to "fail, neglect or refuse to pay any order presented to him for payment, there being then money in the treasury appropriated for that purpose, or from which by law the same ought to be paid." This statute cannot be given a meaning that would warrant punishment of a treasurer who refuses to pay in obedience to the order of the board. It must be construed with other statutes cited above which give the board general control of county property and business, and with section 30-1106 which provides that county moneys shall be paid out by the treasurer "only on orders or warrants issued by the board." A similar contention met with no favor in County of Jackson v. Fayman, supra, where *445 the court said (p. 441 of 329 Mo.) the order lost its vitality when the board that issued it had taken on itself the responsibility of annulling its action.
It is argued that, although the relator may have a remedy by suit against the county, mandamus is the only adequate remedy. Two reasons are advanced. First, that the certificates of indebtedness constitute a prior charge on revenues of the year, and the priority will be lost if relator is driven to a remedy by suit. No authorities are cited in support of the contention that the right to payment out of the revenues of the year will be lost by failure to require payment by mandamus. The cases we have examined indicate the contrary. First National Bank v. Martin,
The second reason is that under § 89-4513 the relator in mandamus may recover damages that cannot be recovered in a suit against the county. In view of what has been said in the cases cited above this argument requires but scant notice. A treasurer ought not to be required to pay damages for refusing to pay after payment is stopped by the order of the board.
Mandamus is not the ordinary method of enforcing payment of a written promise to pay money. Its use for that purpose against officers of municipal corporations is on the ground that the holder of a warrant has the right to immediate payment from funds in the hands of the treasurer. Suit on the warrant that could only result in a judgment would be an unnecessary proceeding, as payment of the judgment might have to be *446
enforced by mandamus. See Ray v. Wilson,
We do not decide that there may not be cases in which mandamus to compel payment of a municipal warrant may issue, notwithstanding a claim of a defense by the municipal corporation, if it appears affirmatively that the claim is not made in good faith. See Barry County v. Supervisors,
The judgment will be affirmed.
Affirmed.
BLUME and RINER, JJ., concur. *447