Carter v. Tilghman

GAROUTTE, J. This is an appeal from a judgment of mandate which ordered the treasurer of Big Rock Creek Irrigation District to pay certain warrants, issued by the district, from the funds then in the treasurer’s hands. Under authority found in certain provisions of the Wright irrigation act, four thousand dollars was raised by a special tax upon the property of Big Rock Creek Irrigation District. This tax was directly authorized by the qualified electors of the district, and was raised for the purpose of “the payment of salaries of officers and agents of the district, repairs, maintenance and protection of the ditches and other property and rights of the district.” Subsequently, the board of directors met and apportioned this four thousand dol[105]lars to certain specific funds, to wit, one thousand dollars to the “expense fund,” one thousand dollars to the “litigation fund,” and two thousand dollars to a fund then and there created to be known as the “engineer’s fund.” The various warrants of the district here involved, in all substantial parts, may be said to be in the following form:

“Treasurer Big Bock Creek Irrigation District will pay to George S. Martin, the sum of thirteen dollars for labor accrued November 1, A. D. 1893, and charge to expense fund.

“Attest:

JAMBS McCOY, President.

“L. C. TILGHMAN, Secretary.

“This indebtedness is payable only when there are funds in the hands of the treasurer applicable therefor.”

Some of these warrants were issued prior to the voting of the aforesaid tax.

There were no funds in the hands of the defendant treasurer to the credit of the “expense fund” at the time these proceedings were inaugurated, and for that reason appellant insists that he, as treasurer of the district, could not pay the warrants, and therefore the action must fail. It is also insisted that the warrants were made payable out of a particular fund; that the holders thereof, by accepting the warrants, agreed to look to that fund alone for payment, and the fund being exhausted, they had no remedy. If it be conceded that the legal consequences contended for by appellant follow from the existence of the facts above stated, still petitioner’s cause of action is not defeated, for the facts are not as claimed by him. There is no agreement upon the part of the holder of a warrant that he will look to the “expense fund” for the payment of the warrant. The fact that the amount paid upon the warrant is to be charged up to the “expense fund” in no way indicates it. Such course of action would be a mere matter of bookkeeping. Upon the contrary, the warrant expressly states upon its face that any funds in the hands of the treasurer applicable to its payment may be called upon to satisfy it. The question then presents itself: Are there any funds in the hands of the treasurer which may be applied to the payment of these warrants?