Commercial & Savings Bank v. Ewing

NOURSE, J.

This is an original proceeding in

mandamus

to require the respondent, as treasurer of the city of Fresno, to cancel and pay on presentation to him a municipal bond issued by the city under proceedings duly had therefor for the construction of a municipal improvement described as a playground pavilion. The respondent has appeared by demurrer and rests upon the ground that the petition fails to state a cause of action. There is no dispute as to the facts. It is conceded that the bond was duly issued by the municipality and that it is now an outstanding obligation and that payment is due. The point of difference between the parties is that the respondent insists that he is not authorized by the municipal charter to pay the bond upon presentation but that it is necessary for the holder thereof to present it to the commissioner of finance for his audit and that the commissioner must thereupon draw his warrant upon the treasurer in favor of the holder and that such warrant alone can be paid by the treasurer. On the other hand, the petitioner insists that the provisions of the charter on which respondent relies relate only to unliquidated claims against the city and do not relate to bonds of this character.

On behalf of the petitioner it is suggested that the bond was issued under an ordinance of the muneipality enacted in 1912, which provided a sinking fund to be kept by the treasurer of the city for the payment of principal and interest upon the bonds authorized by the ordinance and that “when the respective payments of principal and interest shall fall due the said treasurer of the city of Fresno be and he hereby is authorized, directed and required to pay out of the said moneys of said sinking fund the said respective amounts thereof when demand shall be made therefor as by law required, and upon the surrender of the corresponding bonds and coupons to said treasurer.” The bond in suit was sold under the terms of this ordinance and dated August 15, 1912.

[233]

The sections of the charter upon which the respondent relies were finally adopted in 1921. In general they provide that the commissioner of finance shall have the custody and control over the disbursements of city funds. The section upon which special reliance is placed is section 58, entitled “Payment of Claims.” It reads in part as follows: “Payment by the city shall be made only upon vouchers certified by the commissioner of the appropriate department, . . . and by means of warrants on the city treasury, issued by the commissioner of finance. The commissioner of finance shall examine all pay-rolls, bills and other claims and demands against the city; and shall issue no warrants for payment unless he finds that the claim is in proper form, correctly computed and duly certified that it is justly and legally due and payable. . . . He may require any claimant .to make oath to the validity of a claim. He may investigate any claim and for such purposes may examine witnesses under oath. ...”