Mcconoughey v. Jackson

Mandamus—Warrant for City Indebtedness—Pleading.—In proceedings for a mandamus to compel the drawing of a warrant by the president and clerk of the board of trustees of a city, an affidavit of the plaintiff, which, in addition to the merely formal parts of the pleading, avers an indebtedness of five hundred (§500) dollars on the part of the city to petitioner for expenses incurred in procuring counsel for the city at its order, and that the board of trustees ordered his bill and written demand therefor paid, and ordered a warrant drawn in his favor for the amount, which the president and clerk refused to draw and countersign, and that there was money in the treasury to pay it, etc., states the essential facts giving to the petitioner a right to the writ, and is sufficient as against a general demurrer.

Id.—Denial of Indebtedness—Conclusion of Law.—The denial of indebtedness to the petitioner without denying the facts in regard to the expenses incurred by the petitioner for the city is a denial of a conclusion of law, and is wholly insufficient.

Id.—Conclusiveness of Allowance of Claim.—The claim being one which the board of trustees of the city had jurisdiction to hear and determine, its determination is a judicial act, concluding the fact of indebtedness; and whether its decision was right or wrong, its action was binding upon the clerk.

Id.—Want of Funds in Treasury—Denial of Information and Belief-Knowledge of Defendant.—The clerk of a municipal corporation of the sixth class is the financial accountant of the city, whose duty it is to keep a correct account of all the moneys in the treasury and the warrants drawn thereon, etc.; and in his answer to an application for a mandamus to compel the drawing of a warrant upon the treasury, an allegation by him, upon information and belief, that there was a want of funds in the treasury to pay the warrant is insufficient, being the allegation of a fact peculiarly within the knowledge of the defendant, which should have been positive in form.

Id.—Rescission of Acts of Municipal Corporation.—The legislative department of a municipal corporation may, at any time before the rights of third persons have vested, rescind previous votes and orders, so far as consistent with the laws of its creation and its rules of action, and such rescission may take place at any subsequent meeting.

Id.—Rescission of Allowance of Valid Claim.—A valid claim, properly presented to the board of trustees of a municipal corporation and allowed and approved by them, their action being accepted by the claimant, becomes a valid and binding contract, which cannot be rescinded or avoided except for such cause as invalidates other contracts.

Id.—Presumption of Acceptance.—When the allowance of a claim by the board of trustees of a city is of the amount asked for by the claimant, and he demands a warrant therefor, he will be presumed to have accepted the action of the board, and thereafter the board could not, without his consent, rescind its action, except for cause which would defeat the claim, treated as a contract.