252 F. 109 | 9th Cir. | 1918
(after stating the facts as above). It is contended that the demurrer should have been sustained for want of an allegation in the petition or in the alternative writ that the cause of action on which the relator obtained his judgment was one of those which are enumerated in section 357, Lord’s Oregon Raws. It is true that section 361, under which this proceeding was had, refers to section 357, but does so only for the purpose of defining the term “public corporation” as used in section 361. Section 357 defines the causes of action which may be brought by public corporations, but it prescribes no limitation upon the causes of action which may be prosecuted against such corporations, and section 361 requires only that the judgment shall be for the recovery of money or damages against one of the classes of public corporations mentioned in section 357. Again, it is said that the alternative writ is defective for its failure to show whether the relator’s judgment was payable out of a special or a general fund. We do not see how the want of such an allegation is material, but, if the alternative writ is defective in that respect, the defect is cured by the answer to that writ, which says that the judgment is payable out of the general fund of the city. There was no error, therefore, in overruling the demurrer.
The plaintiffs in error cite cases which hold that mandamus will not issue to compel a city treasurer to pay money when there is no money in the treasury. Sucli cases are not in point, for here it is not the purpose of the petition or of the writ to compel the payment of money. The purpose is to compel the performance of an act which is plainly required by statute, and the terms of the statute are controlling. Even if there were no such statute, the weight of authority is that the want of funds is no defense to a writ of mandamus to compel the issuance of warrants for debts that are due. Shattuck v. Kincaid, 31 Or. 379, 49 Pac. 758; State v. Irwin, 74 Wash. 589, 134 Pac. 484, 135 Pac. 472; State v. Hoffman, 35 Ohio St. 435; State ex rel. Jacobs v. Herdman, 28 Del. (5 Boyce) 555, 95 Atl. 549; People v. Secretary of State, 58 Ill. 90.
The order for the peremptory writ is affirmed.
t@E5>For other eases see same topic & KEY-NUMBER iu all Key-Numbered Digests & Indexes