101 P. 625 | Mont. | 1909
delivered the opinion of the court.
On the ninth day of November, 1908, the boards of county commissioners of Yellowstone and Carbon counties entered into a written contract with William S. Hewett and Arthur L. Hewett, copartners doing business as the Security Bridge Company, for the construction of a bridge across the Yellowstone river to connect the two counties. This action was brought by the plaintiff, a taxpayer in both counties, to restrain the defendants from carrying out the terms of said contract, and to enjoin the county commissioners “from allowing any bill or ordering any county warrant to be drawn for or on account of any matter or thing arising from or growing out of said contract.” The cause was tried on an agreed statement of facts 'to the district court of Yellowstone county, sitting without a jury. That court adjudged the contract to be “a valid and subsisting obligation,” and- refused the injunction. From such judgment plaintiff has appealed.
It appears that the contract price of the bridge was $19,998, and it was assumed by counsel at the argument that each county became obligated in one-half of that sum, or $9,999. Although this does not clearly appear from the terms of the contract itself, we shall assume it to be true. The contract provides, among other things, as follows: “It is hereby mutually understood and agreed that all work to be done in constructing said bridge, and all material to be furnished therefor, shall conform strictly to the plans and specifications marked ‘Plan No. 1,’ which are hereto annexed and made a part of this contract; provided, how
It is contended that the contract is void for the reason that the county commissioners have failed to observe the provisions of that portion of Article XIII, section 5, of the state Constitution, which reads as follows: “No county shall incur any indebtedness or liability for any single purpose to an amount exceeding ten thousand dollars ($10,000), without the approval
1. It is argued on the part of the appellant that the sums charged for mileage and per diem of the commissioners, and the expenses of county surveyors, should be added to the contract price in arriving at the amount of indebtedness incurred on account of the construction of the bridge. "We do not regard this point as well taken. Necessary services of county officers, as such, devoted to a project which the county has in hand are a part of their ordinary duties, and should not be considered in arriving at the cost of the undertaking.
2. If it should become necessary, in carrying out the terms of the contract, to employ inspectors other than county officers, sums expended for that purpose should be regarded as a part of the aggregate cost of the project.
3. As the plans and specifications for the bridge are not before us, and were not before the district court, it cannot be said that the court found as a fact, or concluded as matter of law, that the Security Bridge Company undertook to construct the approaches as a part of their contract to build the bridge. Therefore we must give paragraph 5 of the agreed statement of facts its full import, to the effect that the contractors did not obligate themselves to build the approaches, and that an additional expenditure of approximately $300 will be necessary in order to complete the bridge, with its approaches. The agreed statement of facts is of the same effect as a special verdict or finding of facts. (Hartman v. Smith, 7 Mont. 19, 14 Pac. 648; 1 Ency. of Pl. & Pr. 386.) The language of the Constitution is: “No county shall incur any indebtedness or liability for any single purpose,” etc. Section 1416, Eevised Codes, declares: “The word ‘bridges’ in this Act includes the approaches thereto. * # * >> therefore have no hesitancy in holding that the single purpose which the county commissioners of Yellowstone and Carbon counties undertook to accomplish was the construction of a bridge with the approaches thereto; and, as the contract price for the bridge alone was within two dollars of the
4. Again, it is contended that the clause of the contract providing that the commissioners may elect to have additional work performed and material furnished vitiates the same. We cannot say from the contract itself that either county will see fit to exercise this option, and there is nothing in the agreed statement of facts to indicate that the commissioners threaten or propose to take advantage of it. We therefore content ourselves with the observation that what cannot legally be done directly may not be accomplished by indirection, and that any resort to the evasion of dividing up the amount sought to be expended would undoubtedly lead to disastrous consequences.
The judgment of the district court is reversed, and the cause is remanded, with directions to issue a permanent injunction in accordance with the views herein expressed.
Reversed and remanded.
