174 N.W. 78 | N.D. | 1919
Lead Opinion
This is an action to recover the amount due a contractor for the construction of a high school building in a school district in Burke county, North Dakota. The facts are stipulated. In May, 1913, pursuant to an election theretofore held so authorizing, the board of education made a contract with the plaintiff to erect a high school building for the contract price of $24,000. Accordingly, the building was constructed and its value, as stipulated since completion, is $30,-000. The plaintiff has received $19,769.10. There is a balance due and unpaid of $4,295.90, with interest. In 1914 an action to enjoin the school district, its officers, and the plaintiff herein, was instituted by a resident taxpayer of the district to enjoin further issuance or reception of warrants in payment of outstanding warrants for the contracts of constructing such building. ‘ In that case (Anderson v. International School Dist. 32 N. D. 413, L.R.A.1917E, 428, 156 N. W. 54, Ann. Cas. 1918A, 506), this court in November, 1915, held that the contract created a present debt against the district, greatly in excess of the constitutional debt limit, and that to the extent of such excess, the
The respondent frankly concedes that the consideration is involved whether, under the facts, any form of relief may properly be awarded to him. He further concedes a different rule to apply to municipal corporations in seeking to enforce restitution for benefits received under contracts than that which applies to natural persons or private corporations. He further asserts that where restitution will impose no additional burden upon the taxpayers it may be enforced according to the ordinary principles of quasi contracts.
Equity properly recognizes that a municipal corporation should not be permitted to take the property of another, and receive the benefits thereof, and thus be enriched through the loss of another, without compensation.
On the other hand, constitutional limitations upon the creation of indebtedness of municipalities are mandatory restrictions, enacted for the purpose of curbing the taxing power and of restraining excessive
In accordance with the stipulated facts it is impossible to restore to the plaintiff the building erected without destroying property of the municipality. It is likewise impractical to segregate or detach that portion of the building which represents the excess moneys therein owing to the plaintiff. It is likewise clear that the imposition of a judgment to pay such amount, or the requirement that a rental be paid for that portion of the building represented by plaintiff’s moneys unpaid, would impose a burden upon the school district in excess of the constitutional restrictions. It is stipulated that the school district has been compelled to and does levy, the maximum rate prescribed by law in order to maintain its schools. Although, in equity recovery may be permitted in such cases, where no additional burden is thereby placed upon the municipality in excess of the constitutional debt limit, or where the property itself can be identified, segregated, and restored to the parties without injuring the municipality or its property by so doing, nevertheless, in upholding the constitutional restrictions absolutely imposed, relief upon equity principles cannot .be granted where this cannot be accomplished. Litchfield v. Ballou, 114 U. S. 190, 29 L. ed. 132, 5 Sup. Ct. Rep. 820; Grady v. Pruit, 111 Ky. 100, 63 S. W. 283; Grady v. Landram, 23 Ky. L. Rep. 506, 63 S. W. 284; McGillivray v. Joint School Dist. 112 Wis. 354, 58 L.R.A. 100, 88 Am. St. Rep. 969, 88 N. W. 310. See Goose River Bank v. Willow Lake School Twp. 1 N. D. 26, 26 Am. St. Rep. 605, 44 N. W. 1002; Engstad v. Dinnie, 8 N. D. 1, 12, 76 N. W. 292.
It therefore follows that the trial court erred in entering judgment for the plaintiff. The judgment is reversed, with directions to enter judgment for the defendant, dismissing the action. The appellant will recover costs of this appeal.
Dissenting Opinion
(dissenting). No opinion of the court should ever be written with the appearance of cynical indifference to the cause of right and justice. If we must sustain plunder and theft it should be done with tears of regret. Hence, from the majority opinion I do-most strenuously dissent, and hope that on a proper petition for rehearing a better opinion may prevail.
The case presents an appeal by Portal City School District from a judgment against it for $5,000, the balance due on a just and honest contract for the erection of a schoolhouse. In 1913 the schoolhouse was erected and accepted by the district, and though the contract price was $24,000 it appears and is conceded that the schoolhouse is worth $30,000. It is just the building that the city needed and demanded. The defense is on the constitutional provision which limits the debt of a school district to 5 per cent of the assessed valuation of its taxable property. § 183. The purpose of the Constitution was to fix the debt limit at 5 per cent of the true and full value of all taxable property, because under the Constitution and the law it is provided that all property must be assessed at its true and full value. But in the year 1913 there was no such assessment in the city of Portal, nor in Burke county, nor in any other county of the state. All the taxable property was assessed at about 20 per cent of its true and full value. Hence, by sticking to the letter of the Constitution and disregarding its spirit and purpose the court does hold, in effect, that by assessing property at 20 per cent of its true value the debt limit was reduced to 1 per cent of the real value, that under such assessment the debt limit did not permit a contract to pay for a schoolhouse any sum in excess of $19,000. Such was the decision of the court in a suit against the district by one Anderson. 32 N. D. 413, L.R.A.1917E, 428, 156 N. W. 54, Ann. Cas. 1918A, 506. The decision was grossly erroneous and inequitable and unjust. The cause of it was that both the court and counsel wholly overlooked two cardinal points: (1) That a court of equity should never exercise its equitable jurisdiction or grant an injunction for the purpose of doing wrong and iniquity; (2) that, in truth, the contract to pay $24,000 did not exceed the debt limit. It did not exceed 2 per cent on the real value of the taxable property of the district. In the Anderson suit both the court and counsel overlooked the patent fact that the property had been assessed at only a small part, of its full and true
In this case, under a proper complaint, it should have been proven, if not conceded, that in 1913 the total of all debts contracted by Portal City School District did not exceed 1 or 2 per cent of the true and full value of its taxable property, or the court should have taken notice of that fact though it is not alleged in the complaint.
Portal City is a place of no small importance. It is on the Soo Bailway and on the northern boundary line of Burke county and on the international boundary line. In 1913 it was incorporated with a population of 568. Its assessed valuation was $165,000. Its real valuation was over $600,000. In 1913 the average assessed valuation of land was as follows: In Burke county, per acre, $3.50; Cass county, $1.50; Grand Forks county, $6.50; Golden Yalley county, $3.25; Bansom county, $5; Bichland county, $6. In the cities and villages all property was assessed at no more than 20 per cent of its value. As the complaint does not show the character of the assessment and the true value of the property it is radically defective. But under the statute a pleading may be amended at any time before the trial, or during the trial, or on an appeal. A defective pleading does not justify any court in trampling on justice or in aiding or abetting a robbery. It is the business and the duty of this court to correct its own blunders and the blunders of counsel, and to vindicate the cause of justice. And it is time for the court to cease building error upon error by following erroneous and blundering decisions. It is time to teach the city of Portal that its children should not be educated in a $30,000 schoolhouse secured in whole or in part by legal theft. The city is old enough and rich enough to be honest and to give unto Csesar that which is Caesar’s. The plaintiff is honestly and justly entitled to recover the balance due for the erection of the schoolhouse, and the judgment for the same should he affirmed. If not, then the case should be remanded, with directions to amend the pleadings and to submit evidence and findings on the true and full value of all the taxable property of the Portal City School District in the year 1913. .And as the facts above stated are confessedly true, on such an amendment and such additional evidence
Concurrence Opinion
I concur in the result.