City of Scranton v. Hyde Park Gas, Co. ( 1883 )

Chief Justice Mercur

delivered the opinion of the court, March 12th 1883.

The specifications of error present two questions. One, whether an action can be maintained on this warrant, the other, is interest demandable thereon.

The right to maintain suit or recover interest on township, county, borough and school orders has been denied in some cases: Dyer v. Covington Township, 7 Harris 200; Allison v. Juniata County, 14 Wright 351; First Nat. Bank v. Rush School District, 2 W. N. C. 471; Boro’ of Port Royal v. Graham, 4 Id. 352.

Do these authorities or the reasons on which they rest apply to the present case'(

1. This suit is in the name of the party to whose order it was payable, and to the use of the holder. A written contract, bearing date the'28th'March 1877, was duly executed between the parties in pursuance of an ordinance of the city, whereby the Hyde Park Gas Company was to furnish gas for the public lamps, in consideration of which the city was to pay a sum specified, for the gas provided for each lamp, payments to be made monthly. This warrant bears date the 29th December following. It is drawn on the treasurer of the city of Scranton, directing him to pay to the Hyde Park Gas Company a sum specified, “ for account of gas and water appropriation.” It is signed by the mayor, and countersigned by the city controller. The presumption is that it was given in payment of gas furnished under the contract, and the demand for which it was given had been duly audited and settled by the proper officer of the city. In this important particular the warrant differs from all of the orders referred to in the cases cited. All of those had yet to pass the ordeal of áii audit,"and"their validity and; correctness be tested. Prima facie this warrant had passed all such examination, and no obstacle stood in the way of its absolute payment. It had issued under and by virtue of legislative authority vested in the city, and the evidence of its correctness was stamped on its face. This suit was not only in the name of the party to whom the city was indebted on the contract, but this warrant was a distinct and separate admission of indebtedness by officers on whom the law imposed the duty of determining the same. We think suit may be maintained in the name of the holder of a city warrant thus issued in a negotiable form.

2. In the absence of an ordinance providing therefor, it may be conceded the warrant would not draw interest. It is, however, shown that some forty days prior to the issuing of this warrant, it was expressly ordained by ordinance, inter alia, that interest should be allowed and paid on city orders thereafter issued, after payment of the same should have been refused by the treasurer for want of funds. Payment of this warrant was so refused.

The warrant having been issued and accepted under the obligation of that ordinance, its provisions became a part of the contract, from which the city could not be relieved by merely repealing the ordinance. Without making any provision for the payment of the warrant the city could not thus summarily discharge itself from liability for the interest.

Judgment affirmed.