Clark v. Dayton

6 Neb. 192 | Neb. | 1877

Lake, Ch. J.

The action in the court below was brought to restrain the board of commissioners of Buffalo county from paying Clark, the plaintiff in error, for building a bridge across the Platte River, in pursuance of a contract entered into between said Clark and the two boards of commissioners of the counties of Buffalo and Kearney. The case was determined upon the pleadings alone, no testimony having been offered by either party.

It is not claimed that the contract in question was in any respect fraudulent on the part of either of the parties to it. Indeed, the only suggestion of fraud which the petition contains, is respecting the final allowance of Clark’s bill by the commissioners, of which it is merely said that it “ was unjust, and was audited and allowed through fraudulent and undue means.” But by what particular means, in what respect they were fraudulent, or by whom they were resorted to, does, not appear. This averment of fraud is altogether too general for either the admission of proof, or the entry of a decree establishing fraud against any of the parties. Wherefore, in the consideration of the case, we must look upon all that was done as being entirely uninfluenced by any fraudulent or unjust motives, and in the honest belief that it was within both the letter and the spirit of the law. This being the attitude of these parties, I will notice the reasons urged on behalf of the defendants in error why the judgment of the district court ought to be affirmed.

I. The first point made is: that the contract for the erection of the bridge, so far as it concerned Buffalo county, was absolutely void for two reasons: 1st, because it was in excess of the authority of the commissioners as limited by the statute, and 2d, for the reason that the commissioners did not advertise for bids and let the contract to the lowest bidder, under a plan and specifications previously agreed upon. This want of authority on the part of the commissioners is based upon the fact alleged in the petition, and which seems to have been conceded, that, at the time the contract was made, there was not sufficient money on hand belonging to the road fund to warrant so large an expenditure. On this point the petition alleges, “ that at the time of the letting of the said contract, the total amount of money on hand in the county road fund of Buffalo county, was only $62.12, and the amount of such fund did not at any time thereafter, until the completion of said bridge, exceed the sum of $400.00.”

This allegation is evidently based upon section sixteen of the road law, as construed by this court in the case of The People v. Commissioners of Buffalo Cownty, 4 Neb., 150. This section provides that: “The county commissioners may let contracts to the lowest competent bidder for the improvement of such roads as may be of general necessity, and pay for the same by orders on the county treasury, payable out of the county road fund; but no contract shall be entered into for a greater sum than double the amount of money on hand in the county road fund.” But while under the rule established by a majority of the court in that case, this provision is applicable, and must govern in the expenditure of funds realized from the five mill levy for bridge purposes, it most certainly does not wholly destroy the distinctive character which this fund possesses. The tax, when levied, is a bridge tax, and when collected, the money constitutes a special bridge fund — nothing more and nothing less. And it can be lawfully expended only in “ building or repairing permanent and substantial culverts and bridges, under the direction of the county commissioners.” While it is doubtless true, that the ordinary road fund may be used in the building and reparation of bridges, it is not true that this particular bridge fund can be expended in the general improvements of roads.

Now the contract between Clark and the county commissioners provides that, for the payment of the cost of the bridge in excess of the nine thousand dollars in county bonds, he was to receive warrants on the “ bridge and road funds,” not upon the road fund alone. And while the petition by distinct averment shows the almost total want of money in the treasury to the credit of the road fund proper, no mention whatever is made of the condition of this special bridge fund at that time. I am of the opinion that, in this particular, the petition is fatally defective, and fails to show that the commissioners exceeded their authority in making the contract.

As .to the objection that the contract was let without due notice, and with no plan or specifications previously agreed upon by the commissioners, it may be answered that, even conceding these preliminary steps to be necessary to the validity of the contract, as was held by a majority of the court in The People v. Commissioners of Buffalo County, before cited, it by no means follows that equity will enjoin the payment of Clark’s claim. I am of the opinion that the objection came .too late. Clark was permitted to go on under the contract, on the supposition at least that the law had been fully complied with, and expend a very large sum of money in the erection of this bridge, which is now accepted by the proper local authorities, and thrown open to public travel. If there be any inflexible rule of equity which, under the circumstances surrounding this case, requires this court, at the instance of a taxpayer of the county, to enjoin payment by the commissioners of the amount justly due for the work, I am not aware of it. The aid of equity cannot be successfully invoked for any such purpose.

II. But there is still another objection equally fatal to this proceeding. Even if it were conceded that the allowance of Clark’s claim by the commissioners, in the absence of fraud or other undue means, was reviewable in the courts at the instance of a taxpayer, the plaintiff had a plain and adequate remedy by appeal to the district court. Brown v. Otoe County, ante page 111. Having neglected this remedy by which any wrong done to him, and of which he had the right to complain, could have been redressed, he cannot resort to equity for redress by an original suit. For these reasons the decree of the district court must be reversed and one entered in favor of the plaintiff in error.

Judgment accordingly.