Great Falls weekly tribune. [volume] (Great Falls, Mont.) 1894-1???, 1894-12-07
EXCEEDED THEIR AUTHORITY
The District Court Alleges That the
Recent Park Purchases Are
Illegal.
The Council Has No Right to Pur.
chase Parks Outside the City
Limits.

day by Judge Benton in the case Of
Matt Dunn, who asked for q writ Of
mandamus to compel the city treasur,
to pay certain warrants held by him
given in payment for the Sun River park
The question of the authority of the city
council to purcha se parks outside the
city limits was raised by the defense and
the courts decision on this point knocks
out all OF the park purchases, as they
are all outside the city limits. The fol.
lowing is the text of the courts decision
in part:
The alternative writ of mandamus in
the above entitled cause, coming on to
be heard, upon the petition of the
plaintiff and the answer of the respond
ent herein, after argument Of Thomas
q. Brady, Esq, in behalf of the plaintiff.
and Meesrs. ]. G. Huntoon and A. J.
Shores, in behalf of the defendant. and
due consideration,
1t is ordered, that the prayer for the
writ OF mandamus in such cause, be, and
the same is hereby denied.
q. II. BENTON, Judge.
Memorandum: After r~eciting at length
the claims OF the plaintiff and the ans
wer OF the defendant, the court says:
1t will be observed that under the al.
legations of the petition there ia no
showing that the amount necessary to
pay the warrants is in the hands and
under the control of defendant, but the
al egation upon that point u. that IN
January lG, 1ae petitioner presented the
warrants to L>G. Phelps. the then an
thoriZed treasurer, for payment, which
was refused, and in the eighth allegation
of the petition ii is charged thay there is
anu mas been to the credit OF said fund.
as appears by the books of said CITY, n
latge sum OF money, to-Wit, in excess of
$4,000.
agree with counsel for ~relator that
ordinarily a defense that moneys in the
hahus or the treasurer. belonging to the
city has been deposited with a bank that
has since become insolvent isno defense.
IN the absence of a statute authorizing
such deposit, and while | concede that
such allegation would be no defense as
between the oiiicer depositing the money
and the city, still the remedy sought in
this projecting is to compel the treas
ufer by a mandate Of this court to turn
over to the relator moneys out of his
hands and not within his control. Such
mandate would clearly be Intellectual if
granted.
But a much more serious question is
presented by the defense last stated, to-
wit: That the action of the council in
buying land outside the city for park
purposes is unauthorized and void. Mu-
hicIpal corporations possess only such
powers as are granted expressly by
statute, and such as may be implied as
essential to carry into effect those which
are expressly granted. and there is moth.
ing IN the statute of Montana authoriz-
municipal corporations to purchase
outside o. the corporation limits
for park purposes. 1t follows that every
act Of the council in that direction ie
without warrant of law.
In Mayor VS., Park commissioners, A
Cos, tho court says: The right of
he city 10 take possession Of and i'm
prove lands lying outside of the CITY
limits aa a public park is beyond doubt
1 franchise; it comes by a sovereign
grant and not otherwise" ICitations.
The relator maintains that because
me treasurer ia a ministerial officer he
las no discretion, and must pay the war
whether they are valid or not. |
:annot concur with this view. Where
he claim is disputed and its validity
then the writ of mandate
cannot be invoked. and the party must
a clear legal right to have the ser
nee performed by the party against
whom he seeks to have the writ directed.
Citations
"Ihe duties and powers of the officers
nd agents of q municipal corporation
re prescribed by stature, and every per-
on dealing with them may know and is
With knowledge of the nature of
hese duties and extent of these powers.
I follows, therefore, that the agents,
Ulcers, or even the city council of a
municipal corporation cannot bind it by
ny act which transcends their lawful or
legitimate powers; and a municipal cor.
'oration may set up a plea of ultra wires,
r its " want of power under its F.:
or constituent statute. to enter
nto a given contract, or to do a given
ct in excess of it's corporate power and f:
authority :