Trowbridge v. Schmidt

82 Miss. 475 | Miss. | 1903

Calhoon, J.,

delivered the opinion of the court.

Schmidt’s petition for mandamus sets forth that Vicksburg, in grading her streets, had damaged his real estate; that he applied to her municipal board for compensation, which was allowed, and $500 ordered to be paid to him, and the'clerk issued the warrant, but that, by her charter, the treasurer had to approve and sign it, and give cheek for it on the city’s bank of deposit, before the money could be had; and that the mayor, who was also treasurer, refused to do this; and the prayer is that he be compelled to do it, by peremptory writ of mandamus. The treasurer filed eight pleas to this petition, all of which were demurred to, and the demurrers sustained. We do not disturb this ruling as to the 1st, 2d, 4th, 5th, 6th, and 7th pleas, but concern ourselves with the 3d and 8th.

The third plea avers, in proper terms, that, when Schmidt filed his claim for allowance with the board, it was barred by limitation. The eighth plea sets up that the claim of Schmidt was for unliquidated damages for tort; that, more than six years after the tort, he brought suit on it in the circuit court, to which suit the city, as was its duty, pleaded the bar; that this suit is still undisposed of; and that pending it the claim was presented to and allowed by the board.

We have a statute (Code 1892, see. 2755) as follows: “2755 (2685). Completion of Limitation Extinguishes Right.- — - The completion of the period of limitation herein prescribed to bar any action, shall defeat and extinguish the right as well as the remedy; but the former legal obligation shall be a sufficient consideration to uphold a new promise based thereon.”

We find the following in Dillon on Municipal Corporations, vol. 1 (4th ed.), sec. 504 (412) : “Defenses. — A municipal corporation is not estopped, after a warrant upon its treasury has been issued, to set up the defense of ultra vires or fraud or want or failure of consideration. Aind it may maintain a bill in equity to cancel warrants illegally issued. Taxpayers may enjoin the issue of illegal warrants or scrip.” The italics are those of the text. It is indisputable that a municipal board cannot lawfully give away public money. It is certain, also, that a former liability extinguished by the bar of the statute of limitations is no debt. It follows that paying it is giving away public money,-and this is ultra vires, and the treasurer may refuse to pay it. Files v. McWilliams, 49 Miss., 578; Klein v. Board, 51 Miss., 878.

No question of compromise payment appears in these pleadings. It will be time enough to settle that when it comes. It does appear, however, that a. case is pending in the circuit court, and was when the allowance was made by the board, involving the very question of the bar of the statute of limitations here set up. Board v. Arrghi, 51 Miss., 667. There is no similarity between the case before us and the case of a claim within the power of the board to pay, and duly audited and allowed. It is the plain duty of a county or municipal board to plead the statute of limitations when it can, under the facts. Such boards are the people’s trustees.

We think there was error in sustaining the demurrers to the third and eighth pleas.

Reversed and remanded.