140 Minn. 175 | Minn. | 1918
In the proceeding to establish a county ditch the benefits to the lands affected were estimated at $12,413.03, and the cost of the improvement at $7,709.75. Bids for the construction were advertised for and in the advertisement was this statement; “51,968 cubic yards to be removed. The estimated total cost of the work is $7,709.75.” Plaintiffs bid. The bid was not for so much per yard, but was for 26% per cent above the estimated cost, viz., for $9,750. It was accepted, and a contract with the county for the construction of the ditch was executed. Within a week ór so after beginning work, it was discovered that the engineer had made a mistake in the computation of the yardage to be removed, and that to comply with the plans and specifications 22,171.6 cubic yards in addition to the number stated in the proposal for bids must be removed. Thereupon consultations were had with the engineer, the county auditor, and, perhaps, the individual county commissioners, but there was no meeting of the board, and plaintiffs were directed by the engineer to go on with the work and remove .the yardage called for by the plans
In behalf of the county it is urged that there was here no authority in any one to bind it beyond the contract price, nor had any one the right to bind it by proceeding with the work, or by directing it to be proceeded with, when it was known that the cost of construction exceeded the benefits to the lands affected. We think the point well taken.
In the drainage proceedings the county is not interested in the result in a proprietary sense, but is a party thereto merely as a governmental agency. Bowler v. County of Renville, 105 Minn. 26, 116 N. W. 1028; Merz v. County of Wright, 114 Minn. 448, 131 N. W. 635; State Bank of Fairfax v. Vlaar, 124 Minn. 78, 144 N. W. 458. It can, therefore, become bound or liable only because statutory law so decrees, and not because of any implied contract to pay for benefits received or retained by it individually. The law clearly defines the manner in which liability for public drainage may be placed upon the county, and provides precisely how the county may reimburse itself for the liability thus imposed. Section 5532, G. S. 1913, does not permit the county board to establish a ditch unless, among other essentials, it is found “that the estimated benefits to be derived from the construction of the said work are greater than the total costs, including damages awarded, and that such damages and benefits have been duly awarded and assessed.” As the benefits assessed by the viewers were fixed at $12,413.03, the county board lacked authority to establish a ditch costing a greater sum to construct. Plaintiff, as well as the officers and agents of the county, must be held to know the provisions of the law in this respect. Bowler v. County of Renville, supra; Seastrand v. D. A. Foley & Co. 135 Minn.
Another consideration leads to the same result. The whole scheme of the drainage statutes is that the necessary means for the preliminary work and the actual construction of the ditches shall eventually be collected from the benefits assessed against the land affected by the drainage. It is not contemplated that the county should permanently part with the money which the law requires it to provide for financing a drainage project. It is true, the county is primarily liable to third parties for the legitimate expenses preceding the order establishing or refusing to establish a drainage proposition, and for the construction of the work, including the bonds sold to provide the necessary funds. Van Pelt v. Bertilrud, 117 Minn. 50, 134 N. W. 226. But the plain direction of the law is that the amount the county thus advances or becomes responsible for must be assessed upon the lands benefited. Bowler v. County of Ben vil le, supra; or, if the proceeding be dismissed, that reimbursement be had upon the bond of the petitioners. As to the lands here affected the extent of liability was fixed, in the manner provided by law, by the finding of the viewers, adopted by the county board, that the total benefits conferred by the construction of the drainage work were $12,413.03. An attempt now to impose an additional burden of
Plaintiffs rely on Mulgrave-Boyce Co. v. County of Freeborn, 112 Minn. 5, 127 N. W. 396. The facts there were not similar to those in the case at bar. There the bid specified the price per cubic yard of excavation. Here it was a lump sum, based upon a percentage of the engineer’s estimated lump sum cost. And, what is more important, there the benefits exceeded the cost of construction, even after the reformation of the contract, by several thousand dollars, so that the legal question here presented could not even be broached. No doubt the legislature might place upon the county, as a governmental agency, the financial responsibility of ditch construction, and to that end may by statute change the terms of a partly performed construction contract (State v. George, 123 Minn. 59, 142 N. W. 945), but the present drainage act is particular not to authorize the construction, with its attendant obligations, unless the cost thereof can be made out of the amount assessed as benefits.
The case of State v. Clark, 116 Minn. 500, 134 N. W. 130, is also cited, but that relates to the construction of a public road lawfully let to a contractor where the work was completed and accepted. The town officers sought to avoid payment on the ground that a public contractor’s bond had not been furnished. The case is not in point. Nor are decisions involving proprietary interests of municipalities, or businesses which they may have the option to embark in, such as operating lighting and heating 'plants or waterworks, where the acceptance of benefits under a void contract may create a liability, instances of which are: First Nat. Bank of Goodhue v. Village of Goodhue, 120 Minn. 362, 139 N. W. 599, 43 L.R.A.(N.S.) 84; Laird Norton Yards v. City of Rochester, 117 Minn. 114, 134 N. W. 644, 41 L.R.A. (N.S.) 473, and authorities there referred to.
The conclusion above expressed makes it unnecessary to determine
The judgment must be reversed.