47 P. 818 | Idaho | 1896
Lead Opinion
This is an appeal from an order and judgment •of the district court of Ada county sustaining a demurrer to plaintiff’s complaint. As the case rests upon demurrer to the complaint, we have thought best to set forth the complaint as the same appears in the recofd:
“COMPLAINT.
“The plaintifE complains and alleges:
“1. That plaintifE is a political subdivision of the state of Idaho, and a comity of said state.
“2. That the defendant the Bullen Bridge Company is either •a copartnership composed of individuals unknown to plaintifE, ■an association of persons whose names, and residences are to plaintifE unknown, or a corporation, the members and officers ■of which and the place where organized being to plaintifE unknown; and plaintifE asks permission, when it is ascertained whether’or not said Bullen Bridge Company is a partnership or •association or corporation, to amend its complaint accordingly.
“3. That the defendant the First National Bank of Idaho is a corporation organized and existing under the laws of the 'United States, and doing business in Ada county, state of Idaho.
“4. That the Falk-Bloch Mercantile Company is a limited ■corporation, organized and existing under the laws of the state •of Idaho, and doing business in Ada and Canyon counties, Idaho.
“5. That the real names of the defendants John Doe and Bichard Boe are unknown to plaintifE, and plaintifE asks leave to insert the real names of said defendants in the place of said fictitious names when said real names are ascertained.
“And for a first cause of action herein the plaintifE alleges: 'That on the twenty-first day of July, 1891, at Boise City, in Ada county, state of Idaho, the board of county commissioners ■of said Ada county, at a special session of said board, held at said place, made and entered into a contract in writing with the defendant the Bullen Bridge Company, which said contract was signed by O. T. Bilderback, chairman of said board, in be
“‘This contract, made this twenty-first day of July, A. D. 1891, by and between the Bullen Bridge Company of Pueblo, Colorado, party of the first part, and the board of county commissioners of Ada county, and state of Idaho, party of the second part, witnesseth: -That the said party of the first part contracts and agrees to and with the party of the second part to build, paint, and make complete, and have ready for use by the 1st of March, 1893, for the party of the second part, the substructure, superstructure, and approaches for a wrought-iron highway bridge over the Boise river,- near Boise City, county of Ada, state of Idaho. Said bridge to be built in one span two hundred and ten feet in length, with one twenty-two foot apron at each end, and to have one roadway thirty feet wide in the clear. Substructure to consist of iron cylinder piers as shown by plans. All the materials for said bridge, including. abutments, piers, and approaches, are to be furnished by the party of the first part, and are to be of good and suitable quality; and the work is to be done in a thorough, workmanlike manner in accordance with the plans, specifications, and profile on file in the auditor’s office, and forming a part of this contract. And the party of the second part contracts and agrees to pay to the party of the first part the sum of twenty-two thousand ($22,000) dollars. Payment to be made for said bridge in warrants drawn on the general bridge fund as follows, viz.: $13,000 on the delivery of the iron material for said bridge at Boise City, $5,500 on the completion of the substructure, and the remaining $3,500 on the completion and acceptance of said bridge. And the party of the first part will not be held responsible for unavoidable accidents or delays in transportation, or for the elements.
(Signed) “ ‘THE BULLEN BRIDGE COMPANY,
“ ‘By C. A. BULLEN, Agent.
“ ‘C. T. BILDERBACK,
‘“Chairman Board of County Commissioners, Ada County, 'Idaho.’
“2.-That on the twenty-fifth day of February, 1892, in accordance with the terms of said contract, warrants numbered 94 to 106, inclusive, drawn on the general bridge fund of said county, each of said warrants being for the sum of $1,000, and making the aggregate sum of $13,000, were duly issued to the defendant the Bullen Bridge Company, and by said defendant, and through its agent, Charles A. Bullen, drawn and accepted. That on the seventh day of April, 1892, warrants numbered 109 to 113, inclusive, each in the sum of $1,000, and warrant numbered 114, in the sum of $500, on the general bridge fund of said Ada county, and aggregating the sum of $5,500, were duly issued to the defendant the Bullen Bridge Company, by reason of and under the terms of said contract, and by said defendant accepted. That on the eighteenth day of April, 1892, warrants numbered 143, 144 and 145, in the sum of $1,000 each, and warrant numbered 146, in the sum of $500, and aggregating the sum of $3,500, were duly drawn in accordance with the terms of said contract on the general bridge fund of said county, and issued to the defendant the Bullen Bridge Company, and accepted by said defendant. That the aggregate
“3. That no question relating to the making of said contract or the issuance or delivery of said warrants, or any of them, was ever submitted to a vote of the electors of said Ada county, and no provision was ever made for the collection of an annual tax sufficient to pay the interest on said warrants, or to provide a sinking fund for the pajunent of the principal thereof, and no provision at said time or since has been made for the payment of either the principal or interest of said warrants; and that, as plaintiff is informed and believes, and therefore alleges, said contract was beyond the power of the said board of county commissioners to make, and was null and void; and that said indebtedness and liability incurred against said county by reason of the issuance and delivery of said warrants, and each of them, was and is null and void; and that said warrants, and each of them, which have not heretofore been paid, were and are null and void.
“4. That said warrants numbered 94, 95, 96, 97, 98, and 99, each in the sum of $1,000, and aggregating the sum of $6,000, have heretofore been paid out of the revenues of said Ada county for the years 1891, 1892 and 1893, but that the remainder of said warrants, numbered 100 to 106, inclusive, and 109 to 111, inclusive, and 143 to 146, inclusive, and aggregating the sum of $16,000, a.re still unpaid.
“5. That the defendants the First National Bank of Idaho, the Falk-Bloeh Mercantile Company, C. A. Bullen, John Doe and .Richard Roe, the names of the last two defendants being to the plaintiff unknown, as heretofore set forth, own or claim and pretend to own, as plaintiff is informed and believes, and therefore alleges, some interest in said warrants, the exact interest being to plaintiff unknown.
“6. That to allow said warrants to remain outstanding impairs the credit of plaintiff, and also prevents plaintiff from bonding its legal indebtedness, and is against the interests of plaintiff and its inhabitants.
“And for a second cause of action herein plaintiff complains. and alleges: .
“ 'This contract made this ninth day of August, A. D. 1892, by and between the Bullen Bridge Company, of Pueblo, Colorado, party of the first part, and the board of county commissioners of Ada county, and state of Idaho, party of the second part, witnesseth: That the said party of the first part contracts and agrees to and with the party of the second part to repair the south approach to the new bridge across Boise river at Boise City, county of Ada, and state of Idaho. Said repairs to consist of a skew span of one hundred and five feet in length, with a clear roadway of thirty feet, to be placed on the present cylinder piers at the south end of the present span, and on five-foot cylinder piers at the south end of the new span. All material for said bridge, including cylinder piers at the south end of new span, with necessary bulkhead for earth fill at south end, are to be furnished by the party of the first part, and are to be of good and suitable quality, and the work is to be performed in a thorough, workmanlike manner in accordance with the plans and specifications for same on file in the auditor’s office, and which form a part of this contract. Said work to be completed on or before December 1, 1892. And the said party of the second part contracts and agrees to pay the party of the first part the sum of thirteen thousand six hundred and ninety dollars ($13,690), payment to be made for said bridge in warrants drawn on the general bridge fund as follows, viz.: $8,900 on delivery of the iron material for said bridge at Boise City, $3,400 on completion of the substructure, and the remaining $1,390 on completion and acceptance of the work. And the party of the first part will not be held responsible for delays caused from.
(Signed) “ ‘C. T. BILDEBBACK,
“ ‘Chairman Board of County Commissioners Ada County, ■ Idaho.
“ ‘THE BULLEN BEIDGE CO.,
“ ‘By C. A. BULLEN, Agent/
“That the total income and revenue provided for said Ada county for said year 1892 was the sum of $72,978.95, and for the year 1893 was sum of $66,482.66. That the total amount of income and revenue provided for the general bridge fund of said Ada county for said year 1892 was the sum of $8,792.84, and for the year 1893 was the sum of $13,302.53. That prior to the issuance of the first of the warrants hereinafter referred to and provided for in said contract, warrants of said Ada county upon the general bridge fund of said county had been duly and regularly allowed, order drawn, and given over to the owners thereof in amount greater thau the total amount of said fund provided for in said year 1892, and the year 1893 also. That the revenue and income of said Ada county for said year 1892, raised for and appropriated to and placed in the other funds in the treasury of said county, was duly and regularly appropriated and used during said year in paying the current expenses of said county, and in taking up warrants of said county drawn on such funds.
“2. That on the twenty-third day of February, 1893, in accordance with the terms of said contract, warrants numbered 64 to 66, inclusive, drawn on the general bridge fund of said county, each of said warrants being for the sum of $1,000, and making the aggregate sum of $3,000, and warrant No. 67, for $400, were duly issued to the defendant the Bullen Bridge Company, and by said defendant, and through its agent, C. A. Bullen, drawn and accepted. That on the eleventh day of March, 1893, warrants numbered 69 to 76, inclusive, each in the sum of $1,000, and warrant numbered 77, in the sum of $900, on the general bridge fund of said Ada county, and aggregating the sum of $8,900, were duly issued to the defendant the Bullen Bridge Company by reason of and under the terms of said contract, and by said defendant accepted. That on the.
“3. That no question in relation to the making of said contract or the issuance or delivery of said warrants, or any of them, was ever submitted to a vote of the electors of said Ada county, and no provision was ever made for the collection of an annual tax sufficient to pay the interest on said warrants, or to provide a sinking fund for the payment of the principal thereof, and no provision at said time or since has been made for the payment of either the principal or interest of said warrants; and that, as plaintiff is informed and believes, and therefore alleges, said contract was beyond the power of the said board of county commissioners to make, and was null and void; and that said indebtedness and liability incurred against said county by reason of the issuance and delivery of said warrants, and each of them, was and is null and void, and that said warrants, and each of them, which'have not heretofore been paid, were and are null and void.
• “4. That all of said warrants, aggregating the said sum of $13,690, are still unpaid.
"5. That the defendants the First National Bank of Idaho, the Falk-Bloeh Mercantile Company, C. A. Bullen, John Doe, and Bichard Boe, the names of the last two defendants being to the plaintiff unknown, as heretofore set forth, own or claim and pretend to own, as plaintiff is informed and believes, and therefore alleges, some interest in said warrants, the exact interest being to plaintiff unknown.
“G. That to allow said warrants to remain outstanding impairs the credit of plaintiff, and also prevents plaintiff from bonding its legal indebtedness, and is against the interest of plaintiff and its inhabitants.
“Wherefore plaintiff prays that said warrants mentioned in said first cause of action, and now unpaid, to wit, warrants on
“HAWLEY & PUCKETT,
“Attorneys for Plaintiff.”
Duly verified. Filed July 6, 1895, at 4:35 P. M.
To this complaint, defendant the Falk-Bloch Mercantile Company filed a disclaimer. The other defendants filed general demurrers. Upon a hearing in the district court upon the complaint and demurrers, the demurrers were sustained, and, plaintiff: declining to amend, judgment was entered in favor of defendant, from which this appeal is taken.
This is an action in equity, seeking and praying the cancellation of certain warrants upon the treasury of the plaintiff county upon the alleged grounds that the same were issued illegally, and in violation of constitutional provisions. By the issue raised by the demurrer the first question we are called to pass upon is, Conceding the facts to be as stated in the complaint, can the plaintiff! maintain this action? It is contended by defendants that an action for the cancellation of written instruments will not lie upon the state of facts set up in the complaint —in other words, that, the plaintiff! having a plain, speedy and adequate remedy at law, equity will not intervene; and several decisions of this court are cited in support of this contention. Let us examine the cases cited. In the case of Picotte v. Watt,
Section 3 of article 8 of the constitution of Idaho provides; as follows: “Sec. 3. No county, city, town, township, board of' education, or school district, or other subdivision of the state,, shall incur any indebtedness, or liability in any manner, or for-any purpose, exceeding in that year, the income and revenue-provided for it for such year, without the assent of two-thirds-of the qualified electors thereof, voting at an election to be held for that purpose, nor unless, before or at the time of incurring-
Bespondents urge that the incurring of the indebtedness in question, and the issuance of the warrants in payment thereof,
Stripped of all subterfuge, the plain facts in this case, as they appear from the complaint", are simply these (and for the purposes of this case we are assuming that tire facts alleged in the complaint are admitted by the demurrer):
The board of county commissioners of Ada county, without authority of law, and in violation of the plain and unequivocal provisions of the constitution, caused to be issued warrants upon the general bridge fund of said county to the amount of $35,690. Being unauthorized by law, and their issuance prohibited by the provisions of the constitution, the warrants so issued are void. This is not a case where a simple claim is presented for allowance to the board, and from the action of the board in relation thereto an appeal may be taken. The board were acting for the county. They made a contract which was unauthorized by law. The duty of the board was plain. They should have submitted the question to a vote as provided. But, without submitting this question; involving an expenditure of a sum of money equal to more than one-half the revenue of the county for the year, they assumed upon their own motion to abrogate and set aside both 'the law and the constitution, and only obey the dictates of their own sweet will. And we are called upon as a court to indorse Their action. It must have been palpable to the board of com
Rehearing
ON REHEARING.
A petition for rehearing was granted. The cause was first submitted to this court without oral argument, but on this hearing the case was fully presented by oral
This is a suit in equity for the cancellation of certain county warrants issued by the plaintiff county to the defendant the Bullen Bridge Company. Respondents contend that this action ■cannot be maintained, for the reason that the plaintiff has a plain, speedy, and adequate remedy at law, and for this reason the decision of the trial court on the demurrer should be sustained; while the appellant, the county of Ada, contends that the action of the court below in sustaining the demurrer to the complaint should be reversed. The appellant contends that sufficient facts are stated in the complaint to authorize the interposition of a court of equity, and to warrant such court to grant the cancellation of said county warrants; and cites section 921 of Dillon on Municipal .Corporations. In that section the author lays down the following rule: “A municipal corporation may, in its own name, bring suit, in proper cases, to be relieved against illegal, unauthorized, or fraudulent acts on the part of its officers.” We do not dispute this principle but indorse it. The distinguished author says such suit may be brought in a “proper ■case.” He does not intimate that a bill in equity would lie to •cancel a written contract where the party has an adequate remedy at law, where such remedy would be adequate, certain, and complete. If there is no legal remedy, adequate, certain, and ■complete, a municipal corporation may maintain a bill in equity to cancel warrants illegally issued. The appellant cites. Andrews v. Pratt, 44 Cal. 309, as a case directly in point sustaining its contention. The facts in that case were very different from the facts in the case at bar. In that case the plaintiff was a resident taxpayer of Placer county, and three of the defendants composed the board of supervisors of said county, and the fourth •one was the treasurer thereof. The board of supervisors were authorized by law to sell certain railroad stock owned by the county, which they did, and for services in negotiating and making said sale they each individually filed a claim against the countv for $1,600 for their services therein, which claims were