Reeve v. City of Oshkosh , 33 Wis. 477 ( 1873 )

Cole, J.

This action is brought on four several city orders for certain specified amounts, which were made payable to one W. C. Frederick or bearer, “outof the general fund not otherwise appropriated,” and were signed by the mayor and the city clerk. The complaint alleges that the plaintiffs are the lawful owners and holders of the orders, and that such orders have-been presented to the city treasurer at his office in the city of. Oshkosh for payment, and that payment of the same was refused. The orders are set out in haec verla in the complaint. The complaint was demurred to on the ground that it does not state facts constituting a cause of action. A number of points are made in support of the demurrer.

And first it is insisted, that as these orders were expressly made “ payable out of the general fund not otherwise appropriated,” the complaint should have alleged that at the time they were ■ presented to the city treasurer for payment, there were sufficient moneys belonging to that fund in the treasury, not. specially appropriated, to meet them. This objection cannot prevail. These'orders are not payable out of a particular fund, but are made payable out of the general fund of the city. - If ' they were made payable out of a special fund, it would doubtless be necessary to allege that there were moneys belonging to that particular fund sufficient to meet them.' In that case the promise or undertaking of the city would not be absolute, as it; now is, but would be contingent upon tbe existence of a sufficiency of tbe fund applicable to the payment of tbe orders. These orders, however, were made payable from the treasury generally. Bull v. Sims, 23 N. Y., 570. A “distinction must be observed between orders payable out 'of a particular fund, and those which evidence a general corporate liability, but are directed to be charged to a particular account.” Dillon on Municipal Corporations, sec. 413; Kelley v. The Mayor etc. of Brooklyn, 4 Hill, 263; Bayerque v. City of San Francisco, 1 McAllister, U. S. C. C. R., 175.

Another objection taken to the orders is, that they fail to state, as required by the city charter, the purpose for which they were drawn, and therefore create no liability against the city. This objection appears to us insurmountable. Section 1, ch. 7 of the charter (P. & L. Laws of 1868, ch. 501), provides that “ all orders drawn upon the treasury shall specify the purpose for which they were drawn, and shall be payable generally out of any funds in the treasury belonging to the city, except the school fund.” It must be admitted that the orders in the present case do not state any purpose for which the money was to be paid; nor do they conform in any manner to this provision. The language of the charter, it will be seen, is mandatory, that “ all orders shall specify the purpose for which, they were drawn," while the orders before us contain no specification of the kind. We can not therefore see how these orders can be said to create a liability against the city, or be evidence of a debt against it. For it can not be successfully claimed that the legislature could not direct the form and substance of the orders which should be issued by the officers of the city, and prescribe the mode in which such instruments should be drawn to render them binding obligations. And having plainly required that the orders should state the purpose for which they were drawn, no orders are valid unless they conform to this requirement. The counsel for the plaintiffs, however, contends that this provision of the charter is merely directory, which the officers of the city might observe or not in issuing orders. "We are unable to take this view of the provision. As already remarked, the language is imperative and mandatory, and plainly directs that every order issued by the officers of the city shall specify the purpose for which it is drawn. The object of the requirement is to protect the public against an abuse of the power to issue orders, and to guard against the fraud and dishonesty of city officials. If the orders specify the purpose for which they are drawn, citizens interested in the expenditure of public funds can ascertain from them what application was made of all moneys which might come into the city treasury, and see whether they were devoted to a legitimate object. And the city treasurer, on the presentation of the order, has the means of knowing whether money is paid on it for an authorized purpose. The provision is a wise and salutary one, easy to be complied with on the part of the city authorities, and can not be disregarded when issuing orders which create a liability against the city. For, the manifest intention of the legislature was to forbid the issuing of any order which did not state the purpose for which it was drawn. A departure from this prescribed form in the orders set out in the complaint renders it impossible to maintain any action upon them. The provision can not be regarded as directory merely, and one which the city authorities may observe or not at their pleasure.

The plaintiffs base their cause of action upon these orders exclusively, and as they are invalid, it follows that the complaint is fatally defective.

By the Court. — The order of the circuit court overruling the demurrer to the complaint is reversed, and the" cause remanded for further proceedings according to law.