76 N.W. 292 | N.D. | 1898
Lead Opinion
This .action was brought by resident taxpayers of the City of Grand Forks to enjoin said city, and its officers, who are made defendants, from completing the erection of a certain brick building, and placing therein certain machinery, and paying
To develop the pivotal question in the case it will be necessary to mention only certain facts disclosed by the record, and with respect to which there is no controversy between counsel. It is conceded that the City of Grand Forks, through its officers, and pursuant to certain bids which had been previously made in response to proposals for bids made in behalf of the city, did, on the 26th day of January, 1898, enter into certain contracts in writing as follows: One of said cohtracts was made by and between the City of Grand Forks and James Dinnie, whereby it was agreed that said Dinnie, for a consideration of $2,665, to be paid by tire city, should erect and build a brick building for the city in accordance with plans as stated in said contract, the said building to be used as a part of an electric light plant to be owned and operated by said city. The other of said written contracts was made and entered into between the City of Grand Forks and the firm of W. F. Grey & Co., and whereby said firm, in consideration of the sum of $12,703, agreed to be paid by the city, undertook to furnish and place in said brick building a dynamo and certain machinery and appliances, as stipulated by the contract, the same to constitute a part of said electric light plant. It is conceded that prior to the commencement of this action said contracting parties, viz. James Dinnie and said firm of W. F. Grey & Co., had respectively entered upon the performance of their contracts, and had performed a part thereof, and the city had allowed a claim or bill presented on account of said contract with Dinnie, and issued and delivered to said Dinnie á city warrant therefor for the sum of $1,168.16; and the city had also issued and delivered to said firm of Grey & Co., on account of material furnished under said contract, a city warrant for $130. The right of the City of Grand Forks, which is organized under Chapter 28 of the Political Code, to enter into the contracts we have mentioned, is broadly challenged by the plaintiffs’ counsel. It
We remark first, although the point was not made by counsel, that we question whether, under said charter, it would be lawful either for the city to levy or appropriate funds to build and equip an electric light plant to be owned and operated by the city, until such plant had been authorized by some ordinance passed and adopted for that purpose, and which should make provision for maintaining and operating the plant after its construction and equipment. No such ordinance was ever passed by the city council. As has been seen, the charter clothes the city council with the general power to provide for lighting the city; but the charter nowhere provides the mode or points out the manner of making such provision. In such cases the charter expressly provides as follows: “When, by this chapter the power is conferred upon the city council to do and perform any act or thing, and the manner of exercising the same is not specifically pointed out, the city council may provide by ordinance the details necessary for the full exercise of such power.” Rev. Codes, § 2333; Id., § 2148, subd. 77. The manifest object of this statutory provision is to prevent, and not permit, the council to actually exercise large grants of authority without specific regulations of the same first having been made by some-enactment which has the force of law. Hence the requirement that either the charter or some ordinance shall point out the manner of exercising power specifically granted in the charter. A mere resolution of the council does not suffice to meet this requirement. We mention this matter here, not as the crucial point in this case, but to call attention to the fact that when the action hereafter mentioned was taken by the city council, which bears upon the electric light plant in question, no ordinance had ever been adopted by the city council declaring that the city should build, own, or equip an electric light plant, or providing for the maintenance or control of any such plant. As has been seen, it is not pretended in behalf of the city that the funds necessary to build and equip the plant were raised or
“An ordinance making the annual appropriation for the fiscal years 1897 and 1898, entitled “The Annual Appropriation Bill.”
“Be it ordained by the city council of the City of Grand Forks, North Dakota:
Section 1. Salaries and Expenses. There is hereby appropriated from the general fund of said city the Mtm of fifty thousand dollars ($5°,ooo.°o), or so much thereof as may be necessary, for the purpose of paying salaries of city officers, defraying the expense of erecting, completing and installing an electric light plant for said city, and the operation expense of the same during said fiscal year, and the general and incidental expenses of the city government, including the payment of city orders out of the general fund.
“Section 2. Waterworks and Filtration Plant. There is hereby appropriated the sum of fifteen thousand ($15,000.00), dollars or so much thereof as may be necessary, for the maintenance of the waterworks system and filtration plant.
“Section 3. Interest. There is hereby * appropriated from the interest fund the sum of fifteen thousand five hundred dollars ($15,-500.00), or so much thereof as may be necessary, for the payment of interest on city bonds and warrants.”
Perhaps the most striking feature of this alleged annual appropriation bill is the date of its adoption (December 18, 1897), when considered with reference to the alleged levy of the annual taxes for the same fiscal year, which, as appears, occurred on September 9th preceding the adoption of such alleged appropriation bill. The city charter declares that the annual appropriation bill shall be an ordinance, and further expressly declares that the city tax levy shall be “based upon the annual appropriation bill for the year.” Rev. Codes, § § 2190, 2262. While it is true that the provisions of the statute with respect to the time within which any proceeding connected with the tax levy must be taken are to be construed as directory, and not mandatory, yet it is also manifestly true that the annual appropriation for the fiscal year must precede or be concurrent in time with the levy, since the levy is based thereon, and can lawfully be based on no other foundation. Section 2262 declares : “The city council shall at its regular meeting in September of each year or within ten days thereafter pass an ordinance, to be termed the annual appropriation bill, in which it may appropriate such sums of money as may be deemed necessary to defray all necessary expenses and liabilities of such corporation; and such ordinance shall specify the purposes of which such appropriations are made and the amount appropriated for each purpose. No further appropriations shall be made at any other time within such fiscal year unless the proposition to make each appropriation has been first sanctioned by a majority of the legal voters of such city either by a petition signed by them or at a general or special
We now turn to an independent ground upon which the illegality of the electric light enterprise is, if possible, more transparently conspicuous. The trial court -has found, and the fact is conceded, that a majority of the taxpayers of Grand Forks have never by vote or petition given their sanction to any appropriation for an electric light plant to be owned and operated by the city. The fact is pertinent, because the statute (section 2262) inhibits the city council from making any other or further appropriations of city money for the fiscal year, after the annual appropriation bill has been enacted, without the approval of a majority of the voters. As we have seen, the annual appropriation bill is expressly required to be adopted prior to or at the time of the tax levy, and we have also seen that the statute, by its requirements, stands directly in the way of passing such annual appropriation bill at any later date, and all further appropriations after the tax levy are in terms prohibited by the charter, unless the same have the special sanction of the voters. These provisions of the organic law of the city are unambiguous, and their meaning is not obscure. They plainly show that the alleged ordinance adopted by the city council on December 18, 1897, and denominated an annual appropriation bill for that fiscal year, is utterly void, and in the teeth of express charter provisions declaring that no such appropriation bill could lawfully be enacted by the city council. Section 2262. R is not pretended that , the, en
One further matter remains to be considered. The record dis
Rehearing
ON PETITION FOR REHEARING.
In this case the defendants have filed a petition for rehearing, urging, among other points, that this court should have regard to the motives which petitioners claim have actuated the plaintiffs in bringing this action. Their contention is that the actual plaintiffs are only nominal parties, and that the real party in interest in the background is the Grand Forks Gas & Electric Company, a private corporation, which heretofore has been furnishing light to the city and its inhabitants, and whose business interests, as is claimed, are seriously threatened by the construction of the electric light plant in question. It is true that the evidence tends to show that some of the plaintiffs' — not all of them — were influenced by the officers of said corporation in instituting the action, and the question of the plaintiffs’ motives was certainly called to the attention of this court upon the argument. In disposing of the case we did not allude to this feature, not because it was overlooked by the Court, as counsel suggest, but for the reason that, in our opinion, the plaintiffs’ motives in bringing this action are not pertinent to any issue presented in the case, and hence should properly be excluded from our consideration. If there had been no private corporation within the city whose financial interests were to be incidentally affected by the erection of the electric light plant in question, the grounds of the present action would be unchanged, such grounds not depending at all upon any private interests, but resting wholly upon matters of public concern. The right of a taxpayer to institute an action to
The petitioners have further reiterated their principal contention upon the argument, to the effect that the taxpayers, who are the plaintiffs, and, perforce, the champions of the public interests, in this case, have, by their delay in bringing this action, been guilty of such laches as should estop them from pointing out the public wrong in question, and demanding that it shall go no further. Answering this position, it will suffice to say that it is unnecessary to hold in this case, that, the doctrine of laches, as contended for, can never be invoked in any case of this nature, although we are strongly inclined to that view. In the case at bar the record fails to show that these plaintiffs, or any of them, knew, or were ever advised, at any time prior to the verification of the complaint, that an electric light plant, to be owned by the city, had not been
The petitioners further contend that, while the illegality of the contracts in question might prevent a recovery in an action at law brought against the city by the contractors for their stipulated compensation for performing the work and furnishing the material for the plant, yet, nevertheless, in a case like this, where the city officers who are defendants are not resisting the payment of the contractors, but, on the contrary, are ready, willing, and anxious to pay them out of the public funds in the treasury of the city, that a court of equity ought not to enjoin such payment. We can conceive of nothing more detrimental to the public interests, and nothing more subversive of the established principles of law and justice, than the rule suggested; and we think no authority can be found to support any such rule. The logic of' this contention is that in cases where city officers controlling the public funds have seen fit to enter into contracts in defiance of express charter provisions, and the contractors have performed the work, in whole or in part, it then should be left to the election of such officers to determine whether the public funds should or should not be unlawfully abstracted from the city treasury to pay such contractors, and that in such cases courts of equity should not be permitted to interfere with the plans of such officers by enjoining them from an unlawful disbursement of public money. But, accepting this as a proper exposition of the law applicable to such cases, what becomes of the restrictions which the legislature has seen fit to impose upon municipal officers by way of limiting their powers and regulating the manner of exercising such authority as has been conferred upon them by the legislature? Under the rule contended for, courts of equity must stand aside, and allow that which was unlawfully begun to be completed in defiance of the law. But, fortunately for the cause of law and good government the precise opposite is the settled practice of the courts. It is, and long has been, the conceded province of a court of equity to restrain the unlawful plans and
The petition is denied.