Ellerbe & Co. v. City of Hudson ( 1957 )

Per Curiam

(on motion for rehearing). The plaintiff in support of its motion for rehearing has filed an affidavit of counsel to the effect that the defendant city has never had a comptroller. In passing on such motion, we deem that we should not consider such affidavit but are concluded by the original record. Such record is silent on the question of whether the city did have a comptroller at the time the hospital trustees entered into the contract with the plaintiff and the city council later approved payment of plaintiff’s claim for $3,600.

Under the provisions of sec. 62.09 (1) (a), Stats., a comptroller is one of the enumerated officers of a city. However, sec. 62.09 (1) (b) authorizes a city by two-thirds vote of the council to dispense with the office of comptroller “and provide that the duties thereof be performed by other officers or board, by the council or a committee thereof.” Therefore, if the office of comptroller is so dispensed with, his duties are to be conferred upon some other officer, board, or committee of the council, or be vested in the council itself. Merely dispensing with the office of comptroller does not render inapplicable the provisions of sec. 62.09 (10) (f)-

The referee specifically found in his findings of fact:

“That the common council of the city of Hudson made no appropriation of funds for preliminary plan and working drawings and specifications for a municipal hospital, except that the claim of Ellerbe & Company for $3,600 . . . was paid.”

There is no evidence as to the amount of available funds of the city at the time the council voted allowance of plaintiffs $3,600 claim. The burden of proof was upon the plaintiff to establish an effective ratification by the council of the contract entered into between the hospital trustees and the plaintiff. In so far as proving compliance with sec. 62.09 (10) (f), Stats., is concerned, we deem the very minimum evidence to be that the city, at the time the alleged ratification took place, had sufficient unappropriated funds to meet its liability under the contract previously entered into between plaintiff and the hospital trustees. Whether in addition thereto it was necessary for the plaintiff to prove more than this we leave undecided.

The motion for rehearing is denied with $25 costs.