The record-union., 1895-05-25
HNULTY'S DEMAND MUST Be PAID
The City Did Not Keep Its Contract
With Him.
foundmasters Not Required to De.
pend on the Dog Fund for Fees
Earned by Them.

Judge Catlin yesterday rendered judg-
ment in favor of Charles Heisen and
against the city for the sum of S2,199 on
his claim as assignee of ex-Poundmaster
McNulty for fees for dogs killed during
his term Of Office in 1S93-94. McNulty
had tried to effect settlement with the
city, but the Trustees refused to allow
his claim, SO he assigned it to Heissn,
who brought suit for the amount of the
bill.
After reciting all the facts in the case,
showing that the Poundmaster had in
all respects complied with the law, the
court says:
'This indebtedness to the Poundmas-
ter, it will be perceived. was for his COM
pensation fixed by the law for the per-
formance Of official services, also fixed
by law. 1t is claimed on behalf of the
oity that it is not liable therefor by rea-
son of Section IS of Article XI. of the
Constitution, which provides that no
city shall incur any Indebtedness or liza
bility, in any manner or for any purpose,
exceeding in any year the income and
revenue provided for it for such year
without the assent of two-thirds of the
qualified electors. Any indebt-
edness or liability incurred contrary to
this provision shall be void p
1t is clearly apparent from sthe facts
stated that the Indebtedness sued upon in
this case is not aught by this constitu-
tional deadfall, for the reason that il, added
to all the other indebtedness incurred in
the years mentioned. did not exceed the
income and revenue for the city for these
years. The prohibition is not any class
or classes Of debts, but is general and
against debts incurred in any manner,
or for any purpose, and the income or
revenue is not special, but is the whole in
come and revenue provided for the year
In which the debts are incurred"
Referring To the contention by the city
that it was a contract between the Pound
master and the city and that the former
would look TO the dog fund only for his
pay, Judge Catlin says he can find
neither in reason nor authority any just
support OF this contention" The dog
fund, he says, was not one OF the funds
created by the charter of 1868, nor
amendments thereto. Under that char
ter land is was under it that this indebt-
edness arose. it was expressly provided
that the general fund should be used for
all such municipal expenses, including
salaries, as are not otherwise provided
for in this Act"
"Mutuality," says the court, sis re-
quisite of sll contracts, and it may well
be claimed on the part of the Pound
keeper that, if he agreed TO look to the
dog fund for his compensation, the city
also agreed that such fund, which was
exclusively under city control, should
not only be preserved intact each year,
but should also be kept up to a sufficiency
for that purpose.
1.-The dog fund is but part of the gen.
eral fund, set apart for a specific purpose.
The city. instead Of applying the moneys
OF such fund accordingsto what is claimed
10 be an implied contract to pay them
upon demands accruing in the years in
which they were collected, violated the
supposed contract and exhausted the
fund by paying il out upon unpaid de-
mands of previous years. II the view
urged by counsel for the city-that there
existed the implied contract mentioned
be adopted, it would follow, l think, as q
just conclusion, that, as the city appro-
priated Sl.S16 Ii of the Poundkeeper's
money to its use for other purposes, the
plaintiff would be entitled to recover to
the extent of the amount so appropri-
ated.
"But, as before stated, can find moth
ing to support the proposition that the
Poundkeeper agreed to accept in satisfac-
ton Of his fees such moneys as might be
found in the dog fund, whether there
were any in it or not.
1.-The full amount of the fees being
legally due, and no part of them having
been paid, and the revenue provided for
and actually received by the city-for the
fiscal years in which the services were
rendered by which the fees were earned
having been more than sufficient to meet
all the debts and liabilities, including the
demands in controversy, during the same
period, it follows that the plaintiff ia en-
titled to judgment for the sum Of S2,l99."