269 F. 734 | 8th Cir. | 1920
This action was brought by A. V. Wills & Sons to recover from Bates county, Mo., a balance claimed to be due them on contract for digging a drainage ditch. The course of th§ litigation may be found in Wills v. Bates County (C. C.) 170 Fed. 812; Bates County v. Wills, 111 C. C. A. 354, 190 Fed. 552; Id., 118 C. C. A. 361, 200 Fed. 143; Id., 152 C. C. A. 571, 239 Fed. 785; Id., 158 C. C. A. 22, 245 Fed. 556. At the last trial, and in those previous, the plaintiffs prevailed, and the county prosecuted error. The questions presented may be grouped under three general heads, although in considerable measure they occupy the same ground: (1) The corporate liability of the county; (2) the failure of the plaintiffs to obtain estimates of the engineer in charge; and (3) the matter of interest on the amount found due.
The contract under which plaintiffs’ cause of action arose was made May 2, 1906. An amendment of the statutes in 1907 provided that drainage districts should be bodies corporate, with capacity to sue and be sued; but it was prospective in operation and did not, if it could, affect preexistent contractual relations. A still later statute, passed in 1913, provided for the reorganization of previously existing drainage districts, with corporate powers, equipment of officers, etc., and the district here in question availed itself of the provisions. But the rights of the .parties had become fixed; this action was begun in 1909. The effect of the act of 1913 was fully discussed by this court on the last appeal (152 C. C. A. 571, 239 Fed. 785), and it was held not to have destroyed the rights of the plaintiffs or their pending action, but to have' preserved them instead. We see no reason for disturbing that conclusion.
Section 3 of the-main ditch was about 4% miles in length. It began at the Marias de Cygne river and ended at the Osage river. When plaintiffs had excavated the ditch to the (bottom) grade line for about two miles they encountered a rock formation, which they claimed they
Other questions were also involved and decided, but they are not important on the point now being considered. In the meantime the county contracted in writing with other parties to remove the material left in the ditch by plaintiffs, and the work was done while this case was pending. The cost was set up by the county in defense and by counterclaim, and the excess of such cost over plaintiffs’ contract compensation, had they done the work, was' ascertained at the trial, and has been charged to them and deducted from their recovery in the judgment now under review. We are of the opinion that the liability of the county was fixed by written contract within the requirement of the state constitution and statute. The county was not held upon an oral agreement, or implied contract, or for the reasonable value of services performed or work done, as distinguished from express contractual stipulations. In a broad sense the last contract under which the rock was removed was for the account of the plaintiffs, and the result, the increased cost, was charged to them. In no view did the county do anything except by written contract, and that is what the statute required. The county was held to no other measure, and it suffered no greater or different liability.
“It is finally objected that, as the bonds are in fact the bonds of the town-' ship, no action can be maintained upon them against the county. Without undertaking to decide what would be the appropriate form of proceeding to enforce the obligation in the state courts, it is sufficient to say that in the courts of the United States we are entirely satisfied with the conclusions reached by the court below, and that a judgment may be 'rendered against the county, to be enforced, if necessary, by mandamus against the county court, or the judges thereof, to compel the levy and collection of a tax in accordance with the provisions of the law under which the bonds were issued.”
It is also said that the bonds that were issued and sold by the county court to raise funds immediately for the improvement purported on their face to he bonds of the drainage district. But that should be taken as descriptive of the special relation of the county, and not as a designation of the corporate contractor. The legal promisor is determined by the statutes back of the bonds. The statutes in their entirety determine the status of the obligations. The cases of Davenport v. County of Dodge, 105 U. S. 237, 26 L. Ed. 1018, United States v. Dodge County, 110 Ú. S. 156, 3 Sup. Ct. 590, 28 L. Ed. 103, Blair v. Cuming County, 111 U. S. 363, 4 Sup. Ct. 449, 28 L. Ed. 457, and Nemaha County v. Frank, 120 U. S. 41, 7 Sup. Ct. 395, 30 L. Ed. 584, involved statutes of Nebraska which authorized counties and cities to issue bonds in aid of works of internal improvement. Any precinct in an organized county was also authorized to vote such aid, and in such event the county commissioners, having the same relation -to the county as the county court has to a county in Missouri, were empowered to issue special bonds for the precinct and levy taxes to. pay them on the property in the precinct. It was held that actions on the bonds were properly brought against the county, and in form the judgment would be against it, to be collected by a tax on the taxable property in the precinct; and this though the promisor in the bonds was the precinct. Blair v. Cuming County, supra.
The county relies upon State v. Redman, 270 Mo. 465, 194 S. W. 260, for lack of authority for future assessments after the first assessments have been shown to be insufficient. On the other hand, the plaintiffs cite the Missouri statute of 1913 (Laws 1913, pp. 271, 281), as authority for additional levies. In the case cited the additional levy in controversy was made in 1912 without notice to the landowner. The Supreme Court of Missouri declined to regard the subsequent act of 1913 as a binding legislative construction of the laws in force when the levy was made or to give it retroactive effect. The judgment had been obtained, but there was no authority for the particular remedy at the time it was employed. There was no decision that after authority was conferred by the act of 1913 an additional levy could not then be made. As to this see McWilliams v. Drainage District (Mo. App.) 224 S. W. 35.
The distinction between the Redman Case and the one at bar is plain. Here the words of the judgment to which objection is made contemplate future levies under the act of 1913, or any other law in force at the time they are made. Section 2 of the act of 1913 provides:
“All contracts entered into, all liens established and other obligations created, including warrants and bonds issued, by drainage districts heretofore organized under the provisions of said article 4 of chapter 41, are hereby declared to be valid, and the county courts shall levy sufficient tax to pay all such forms of indebtedness.”
The act also declares that the amendments contained in it shall be deemed to be remedial in their character and shall be liberally construed by the court. The above provisions are applicable to the case at bar, and without more dispose of the objection stated. If the exhaustion or depletion of the fund first raised does not destroy the remedy, a fortiori it is no defense against a judgment on the claim itself. Hipple v. Bates County, Mo., 138 C. C. A. 436, 223 Fed. 22, in this court, was an
“When the proceedings in the city council progressed to the awarding of the contract, the rights of the contractors to payment could not be defeated by the expenditure thereafter of applicable county funds. Otherwise, a contract valid in all respects when made could be nullified by the subsequent acts of the statutory debtor.”
It is now urged that the contract required also a final estimate and a certificate of completion by the engineer, as distinguished from monthly estimates and acceptances of parts of the work as it progressed. If this were so, which is quite doubtful, the cause of the withholding of the former was involved in and determined with the refusal of monthly estimates and acceptances. ' This applies also to the further contention that the statutes required a final certificate of the engineer of the completion of the work, and an audit based thereon by the county court, hefore the plaintiffs were entitled to payment. In view of the refusal of monthly estimates and acceptances of the work as it progressed, the reasons of the refusal, and the denial by the county of any liability whatever to the plaintiffs, it would have been an idle ceremony for them to have sought a final certificate and audit. To require those things ás' conditions precedent would be to give effect to a wrongful denial of liatiility upon other grounds.
The other contentions on behalf of the county need not be recited. We do not regard them as sufficient. Following the course in the trial court, we have considered only the special liability of the county. We have not considered, and do not determine, whether it also incurred a general one.
The judgment in favor of the plaintiffs is modified, by reducing the amount to $42,691.43, as of December 14, 1917, and, as so modified, it is affirmed. •