169 N.W. 23 | S.D. | 1918
Lead Opinion
The county commissioners of Beadle county 'having entered! .into a contract with the Iowa Bridge 'Company for the building of certain bridges, plaintiffs, alleging the invalidity of such contract, .brought this action, on behalf of themselves and other taxpayers of su'ch county, to restrain the County and' it® officers from carrying out stock contract 'and making payments- 'thereunder, and asked for such other and further relief as to the court might seem- just and -equitable. A temporary- restraining order was denied. Afterwards the bridge company 'was made a party -defendant. The cause .was ithen tried' -upon its merits, and1 findings, conclusions, land judgment entered'in favor of defendants.. From such judgment this appeal was taken, but no supers-eide-as1 bond was furnished. After appellants’ brief upon appeal ihdd been filed, respondents! moved ia- -dtismiissal of the appeal, supporting -such' motion by affidavits -from which ;it appears- that the bridge company, pending the proceedings in the lower court and in’ this court, hias completed its Contract, and has .received payment from' the county for the work done. Respondents ¡contend! that there is left but a m'oot question, and that 'this court should not retain' this appeal for the purpose of passing upon such question.
It must be remembered that the change in circumstances upon which tills motion is based was not brought about through the acts or efforts of appellants' — they are not -in any wise responsible' for the fact that there-has been, -such change in ciricumistances' since áie 'commencement of the action.- If appellants-''Were entitled) to 'inj-uiiC
“The defendant, -after it was informed by the 'commencement of the -other action that its -contract was1 tainted with illegality, went on and performed the same -at its peril. * * * The -plaintiff is entitled to vindicate the rights- recognized- and established by the judgment Am the -action in which he ¡prevailed. We find nothing in the coudluct of the plaintiff which amounts to a waiver of his right to assert ¡the illegality of the contract.”
It has been 'suggested that it would be,impossible to undo what the bridge company ¡has done. That is certainly true, and no one would contend that this or the trial court could now, 'by any equitable relief whatever, undo what has been done. But this court iat least can see to it that the taxpayers are not barred (now that they have been denied the equitable relief, and provided we hereafter find they were wrongfully denied such relief) from recovering such darngaes- as they may shdw themselves entitled to. Of course, if, upon the merits of the pending -appeal, we -shall decide that .the trial ■court was right, by such decision we will hold that the ‘appellants had no '.right to injunctional relief, and oiur adjudication will stand as a ¡bar to any future claims that they may make baseldi upon facts which would stand -adjudicated against them (by our 'sustaining the trial court. If we should determine that appellants were in the right and .were entitled to have received the injunctional relief which they sought, they cohld then amend their ple'adiings in this ■action or bring another action and seek to recover money damages, as was done in McMillan v. Paving Co. It will then be timie enough for the ••courts to determine whether or not the fact that the bridge is built land is of value to the .municipality and the people thereof ■can be -considered as a defense, counterclaim, or set-off to plaintiffs’ demands. That is a matter 'with which at this time this- court has no concern.
A case peculiarly analogous to the one before us is that of Green v. Okanogan County, 60 Wash. 309, 111 Pac. 226, 114 Pas. 457. In both cases all parties to the contract, including the county, -the county commissioners, and the other contracting parties, were made defendants. In both cases' the contract was attacked upon the ground that the 'commissioners had not complied with the statutory requirements. In both cases the-'trial court held against plaintiffs and entered judgment dismissing .the action. In both cases it appeared, from .affidavits filed subsequent td the perfecting of the appeal, that 'the contract had 'been executed. In both cases respondents sought a dismissal of the appeal on -the ground -that, the contract having been fully executed, nothing but a moot question remained1. In the Green. 'Case tire court held that the court should
“The respondents .moved to dismiss the appeal On the ground •that there has been a cessation of the controversy. It appears from, affidavits filed subseqxxent to the' pex-fection of the appeal -that the board of county coxxmissioneriS executed the contract after the dismissal of the action in the court below, and it is, contended that nlaw there is nothing upon which the injxxmction can operate, as the acts of the defendants sought to be eixjoined have been fully performed. But this contention mistakes the power of the court. It is true that ''when, pending am appeal 'from the judgment of the lidwer court, 'and without -any fault on the part of the respondent, an event occurs which renders it impossible -to enter a judgment in favor of the appellant which will give any effectual relief, tire court will not proceed to a formal judgment, but 'will dismiss the appeal, and it is held also that the same resixlt will follow if the in-tervexxixxig event is owing to some -voluntary-act of the applicant. Bxxt no such result follows merely because the respondent has changed the status of the subject-matter in litigation. So in this case, if it appears that the comtraot entered into was subject to ¡be enjoined because in violation of the statutes, the court may now inquire into' the subsequent acts of the respondents, and compel them to undo what they have wrongfully done in so far as it ‘is capable of undoing, and to answer in dlamages for anything that cannot be xxn- ‘ clone. This, principle was announced in the eaxdy case from- this .court of Hartson v. Dale, 9 Wash. 379, 37 Pac. 475. * * * The decision was .rested 'on the ground that It would be highly inequitable to allow any subsequent action of the respondent to have 'the effect of subjecting the appellant to the costs of a meritorious • appeal, while .the decision ought to have beexi rested! on the ground we have before 'indicated, namely, that the court had power to enter axi' effectxx'al ¡decree by compeling the parties toi undo' what -they had wrongfully clone, or .compel them to answer in damages therefor. * * * In Mills v. Green, 159 U. S. 651, 16 Sup. Ct. 132, 40 L. Ed. 293, the court used) this language: Tf a defendant, indeed, after notice of the fifing of ¡a bill ixi eqxxity for an -injunction' to restrain the building 'of' a house, or ‘ c'f a raili'oad, or of any other*605 structure, persists in completing the building, .the -court nevertheless is not deprived of the authority, whenever an 'its opinion justice requires -it, to -deal -with- the rights of the parties ate they .stood -at the ‘commencement of the suit, and to -compel the defendant to undo -wh-at he has 'wrongfully don-e -since 'that time, -or to -answer in ■damages..’ See, also, Tucker v. Howard; 128 Mass. 361.; Pennsylvania Co. v. Bond, 99 Ill. App. 535; Tate v. Field, 36 N. J. Eq. 35, 37 Atl. 440. The fact that no .temporary injunction has been granted does not affect the kind or the extent of the remedy •to which the ¡plaintiff is entitled upon establishing- his- right at the hearing on the merits. Tucker v. Howard, supra.”
It hag been ¡suggested that the case of Carr v. City of Montesano, 76 Wash. 380, 136 Pac. 363, is analogous to the -case nlo'w before us, and should be recognized as -controlling herein, -being later in date than the Green Case. An examination of the -Carr Case shows that there is- no 'similarity 'between the facts' therein and the facts in the -case before us. The ¡Carr 'Case was 'brought against the city, its .treasurer and .deputy treasurer, to restrain the paying of a warrant. The -warrant -was issued in payment of a ¡claim- that was oo-ncediedly valid, but the contention- ¡was that the warrant brought -the indebtedness, of the -city a-bo-ve the -constitutional limit. N-o -service w-as made- upon the city treasurer; the only -issue joined being with the city. The trial court held that the -city had no-t reached its constitutional limit o-f inidieb¡tediness, and ¡dismissed the action. Plaintiff appealed'. After -such appeal taken there was a showing made that the -warrant had been -paid, -and a motion was made to- -dismiss up-on- the ground- that the controversy had ceased.
It is also suggested that the still later case of Barber Asphalt Paving Co. v. Hamilton, 80 Wash. 51, 141 Pac. 199, is analogous1 to and controlling in this case. A study of the facts in the Hamilton 'Case will show that the decision therein wias based upon facts not to be found in the case now before us. In the Hamilton Calse plaintiff hadi bid for certain work to. be dione for the county of which defendants were commissioners; after it made its bid and was entitled to a contract — in fact it Sis claimed that a1 contract had been let to plaintiff — the county, through defendants, attempted to cancel plaintiff’s contract, to- reject all bids theretofore madie, to, readvertise for bidders, and to enter into a new .contract. The plaintiff brought this action to restrain defendants, as commissioners from entering into a contract with any .other and from cancelling the contract which they claimed1 hadi been entered into. with, plaintiff 'Company. The defendants pleaded] certain matter in the way of .defense which they claimed showed that the contract with, plaintiff was not binding upon them, and, by a second dr supplementary ans'wer pleaded that they had' rCadivertised for 'bids and had entered into ,a contract with a third' party who had entered! upon the performance of the work; and defendants further alleged that such, contract was then approximately .performed. On the final hearing in the 'trial Court it appeared that the 'check which accompanied plaintiff’s, bid had’ been returned to plaintiff and accepted by it, and the defendants moved in the trial court for a dismissal of the action for insufficiency of evidence and because the complaint did no't state a cause of action. Su'ch motion was granted1, and the plaintiff appealed. A motion to, dismiss the appeal was made upon the ground that the controversy had ceased; that the right to 'injunctive relief no. longer existed;
The motion to dismiss is denied.
Dissenting Opinion
(dissenting). I am unable to concur in the conHuision reached iby my Associates in the foregoing opinion. Neither can I concur in the view that the 'decision in Holter v. Norbeck & Nicholson Co. et al. 'should be over-ruled). It appears -from the record that the commissioners, of Beadle county let ¡and1 entered into a contract with -tine I-oiwa Bridge 'Company to construct seven1 steel bridges in said county; that after the letting (of said contract, and before the beginning of this action, the bridge company purchased, had manufactured1, and ¡delivered ¡ait the place of ¡construction, the structural steel ¡and iron- portions of said ¡bridge material so Cut, shaped, and with hales ¡drilled therein for bolting together said particular bridges, for the purpose lof -constructing the same under and- 'by virtue of the terms of said contract. This suit was instituted at the ¡instance of ¡certain taxpayers: who were dissatisfied' -with the letting of the contract for the ¡construction' of said bridges. At the time this suit was commenced) an order to show -oau-se based on the allegations lof the complaint only was procured1 by plaintiffs, who thereby sought to obtain injunction, pending suit, restraining the respondents from paying o-ut any -money on said contract for the construction of said bridges-. Upon the ¡hearing -of said- order to show -cause the trial court by order denied- the motion and application for sludi injunction. No ¡appeal was ever 'taken from.this order. The complaint in this1 -case seeks no ¡other remedy than, injunction to enjoin and restrain the -cou-nty of Beadle -and its county commissioners from ¡paying to the Iowa Bridge .Company the -contract price for constructing said bridges bn- the sole alleged ground that -certain, statutory requirements were n'ot observed in the ¡letting of said .contract. No fraud" of any kind was- alleged in relation to the letting of said contract. No injunction was sought to prevent
It appears from the record’ that at the time of 'the trial 75 peícent. of the construction of said’ bridges had1 been completed, and that since the rendition lof judgment tire entire work of constructing said bridges has been ful'ly completed, and that the county treasurer has fully paid all warrants dirawn by the county auditor on him in payment of said bridges so constructed and completed' under and by virtue of said 'contract. It also appears from the record that neither the county treasurer nor the county 'auditor are parties to this action. At no time ¡has' there ever been anything to restrain the bridge company from executing andi carrying out its contract or from constructing said bridges according to contract. At no time has there been anything to restrain the ’commissioners of Beadle county, or the auditor or treasurer, from issuing, drawing, or paying county warrants for the construction of said bridges. Under these circumstances I am of the view that the appeal should be dismissed on the ground that the remedial controversy, as made by the pleadings, between the parties to this suit has ceased to exist. I am of 'the view that the sole and only remedial controversy, as made by the pleadings, was whether or not plaintiffs, as taxpayers, were entitled to an injunction restraining the payment to ■the Iowa Bridge Company of the contract price for the construction of said bridges, and nothing more; and that, under the record as it now appears before this court, any judgment this court might now render would be ineffectual for any purpose, since the right to injunctive relief — the only relief sought and the only relief which would ever have been possible under any view of the pleadings — ■ has nozo ceased to exist. The italicized1 concluding clause1 of the -last preceding sentence .is quoted from, the case of Barber Paving Co. v. Hamilton, 80 Wash. 51, 141 Pac. 199, being a -case “on all fours” with the case at bar, in which the Supreme Court of Washington dismissed the .appeal on the ground that the .controversy -had ceased to exist, and distinguished the case from .that of Green v. Okanogan, citedi by Judge WHITING in the majority opinion.. As
“From the facts established by the affidavits above referred to it is -clear that the injunctive relief asked for cannot be granted. It is also clear -that nici mandatory injunction, placing the -parties in -statui quo by .compelling the commissioners to -unto what they have done, -can- issue. 'N|o court would! require the tearing up of the pavement, already practically completed at the time of hearing the appeal, in order that tire plaintiff might be permitted to proceed! with its) .-alleged contract and replace the work along plans not now approved by -the -county commissioners. A -soun-d public -policy would forbid it.”
I ;am of the view- that this court cannot, and would not under the record in -this case, require the tearing d-oiwn -of the bridges in question -and -put -in statu, -quo the parties as of the time when -this action was 'commenced in orden to be in a position to sustain an-injunction. Under our .system of remedial law as! provided for in this state in section 454, Code Civ. Proc., persons who desire Injunction against the construction -of public -improvements and -payment therefor haVe the remedy of applying for .an injunction, pending suit, and section 454 'provides that when a party -shall give immediate notice of appeal from an -order denying an injunction, he may, within three days .thereafter, serve.-an undertaking, etc., and thereby secure -the stay mentioned in section 453. This is the undertaking that should! have been given to protect the bridge company after ■the refusal of the trial Court to grant the injunction pending Suit. The trial' court might have granted the injunction in the first instance, without bond; but the appellant, after the order denying the temporary injunction was issued, was hound to -appeal and iput up a supersedeas stay bond ira order to stop the bridge company from completing the construction .andl receiving pay far said bridges. Tt is beside the mark to say that the .appellant -might have maintained a suit .for injunction, without the nacessiity of an injunction -pendente -lite, and thereby have obtained the same result; because, i-f no injunction pending suit had been applied for, and' if the con
Unless a dissatisfied taxpayer has been able to secure an injunction pending suit, or where he has been- ruled against on his application for such injunction, and has not availed himself of the provisions of sections 453 and 454, there would he no reason existing why a contractor should not be permitted to proceed in good faith and complete his contract and receive his compensation therefor. These previsions of the statute furnish the 'dissatisfied taxpayer with a remedy, and, unless he avails himself thereof, the construction of the improvement should not be interfered with. If dissatisfied1 taxpayers can so stop the construction of public improvements without injunctions, and without appeal bonds to protect their rights, no contractor would ever he safe in taking a contract to construct a public improvement, and the public under -.such: circumstances would always be at the mercy of a small dissatisfied minority which nearly always exists. Of course where there is a fraudulent contract, such as was shown in the McMillan Case, the same, len the ground and by the reason of fraud, should be set aside andl canceled and; the 'contractors under such circumstances would not be entitled to compensation by reason of their fraud; hut a case of that kind would be based upon an entirely different reason than that involved in a case where no fraud is alleged and wherein" no violation of public policy is. involved. Under the rule
The decisions' in these eases 'dismissing appeals, where the thing sought tci (be enjoined had ¡been accomplished, are biased om the rule and reason 'that if, pending an ¡appeal, an event occurs which makes a determination of the appeal' unnecessary, or renders it clearly impossible for the appellate court to grant the relief 'under the pleadings and record, the appeal will be dismissed. 4 C. J. 584, and note citing Holter v. Norbeck & N. Co., Barber Asphalt Paving Co. v. Hamilton, and Carr v. Montesano, supra, as sustaining the text. This general- rule is based 'on the elementary reason that a court cannot restrain the removal of a house ¡after the house has been removed. In this case it must at all 'times be remembered and Observed that the appellant sought only preventive relief by means 'of an> injunction. In the Barber Paving Co. v. Hamilton and the Carr v. Montesano Cases, the voluntary acts- of the contractors in completing the work, and the voluntary act of payment therefor ‘by the officers oif the municipalities, were not considered, under the circumstances of those eases, as voluntary acts that would warrant the denial of the motion to dismiss the appeals under the rule announced' in the Okanogan Case.
The circumstances before 'the court on the motion to dismiss ’the appeals in these subsequent Washington cases in principle are precisely the same, as the facts or grounds for dismissal •of the appeal in this .case. Under the facts and record1 in the Barber Co. v. Hamilton Case, the decision was right ¡and in accordance with 'the general rule application to the facts of that case. No fraud was alleged or eilaimied', no cause of ¡action floor damages, .and" no question of public policy involved. There might be cases where the record indicated that ¡the judgment of dismissal of the appeal might preclude other remedial rights, where such rights appear to have .been involved in the case; but the 'record in this ease shows that 'no such father remedial rights exist, under the issues raised) by the pleadings in ¡this case. The only relief sought by ¡appellant under' the pleadings was injunctive and: preventive. 'If other and more -comprehensive' relief had been sought and) facts 'had been alleged warranting damages, or a canceOation of the contract
So far as appears from the record there is no question involved on this appeal other th-an -that concluded by the failure to appeal-from the -order refusing -the injunction. If th-e Halter Case i-s to be overruled!, so also must be the case of C., M. & St. P. Ry. Co. v. Sioux Falls, 28 S. D. 471, 134 N. W. 46, as both, cases are based on the sam-e principle with the sam-e basic facts-. But the majority opinion s'eeks to distinguish between the Sioux Palls and the Holter Cases, and.- as a -distinguishing feature -s-ays-:
“The -appeal therein was from an -order -refusing a -temporary -injunction, 'which -order cou-l-d- not be ¡pleaded- as res judicata in- any proceeding brought -seeking alternative -relief,.”
In that -case, where the a.p-peal was 'from- -the order refusing a temporary injunction, this court properly dismissed the- -appeal because no supersedeas bond under said: section- 454 h-ad been given, and where the thing sought to be enj-oined had been done and accomplished -at the time of the motion t-0 -dismiss the ap-p-eal. As I view this proposition, the reasons for dismissing the appeal in -this case -are much -stronger than in the 'S-ioux Palls Case because in' this case no -appeal was' taken- -at all from- the -order refusing to -grant
In the Barber Asphalt Co. v. Hamilton Case the Supreme Court of Washington refused to consider the question of damages because not an issue framed by the pleadings in -that case. I aite
For all the reasons heretofore cited, I am of the opinion that the appeal in this case should be dismissed.