94 Va. 547 | Va. | 1897
delivered the opinion of the court.
The decree appealed from in this case was rendered in a cause in which Andrew Broaddus and R. S. Pams, residents and tax-pavers of Page county, suiug for themselves and other tax-payers, are plaintiffs, and the Manly Manufacturing Company, of Dalton, Gfa., John W. Rothgeb, A. JET. Keyser, H. O. Knicely, and G-. T. Brubaker, who are described as members of the board of supervisors of Page county, are defendants.
The bill charges that the board of supervisors of Page county contracted with the Manly Manufacturing Company for the construction of a county jai] and jailor’s residence at the county seat for the sum of $6,486.24. The building was to be erected in accordance with the terms of a written contract, which is filed as an exhibit with the bill, and certain specifications and plans accompanying it. In this agreement the board of supervisors reserved the right to make changes and alterations in the character and quality of the work, at a fair and reasonable valuation to be fixed and agreed upon in writing between the parties before proceeding therewith, and no claim was to be made against the county of Page for extra work or material unless ordered by the county, and the price thereof determined as thus stipulated. The building was to be delivered fully completed, and free from all liens and encumbrances for labor and material, on or before the first day of Decern ber, 1895. It was provided that the county of Page should appoint a superintendent, whose duties were to inspect and decide upon the quality and character of the material furnished and work done, and to report thereupon
Provision was made for submitting differences to arbitration arising as the work progressed, and upon the completion of the work it was to be examined by the board of supervisors, and if it then appeared to have been completed in accordance with the contract, the building w as to be accepted; and, finally, to exclude the idea of there being any other contract than that in writing, in relation to the erection and completion of the building, it is stated “that neither of the said parties is to be held to the performance of any supposed understanding or agreement not herein expressed, or set forth in specifications referred to herein, and made a part hereof.”
Of the agreed price, $4,000 was to be paid upon the completion and acceptance of the building, and the residue in one, tw o, and three years from that time, w ith interest.
It appears that Rothgeb was designated by the board of supervisors to superintend the work as provided in the contract. The bill then alleges that almost immediately after the execution of the contract, the Manly Manufacturing Company, through Mr. Manly, began to ply the board with applications and inducements to extend the work.
"Without stating in detail the various changes which were finally introduced, it is sufficient to state that the board of supervisors approved alterations in the contract, the cost of which amounted to the sum of $3,035.
The bill then avers that Manly, the president of the manufacturing company, by the exercise of many wiles and blandishments, acquired an influnce over the gentlemen compris
It is further alleged that the work done was so imperfect and the material used so indifferent that the building is going to ruin and decay. The defects of construction are stated in much detail, but it is unnecessary to repeat them here.
In conclusion, the bill alleges that a most “pertinacious and adroit atiack, contrived of mixed persuasives and menaces,” has been brought to bear upon the board of supervisors in order to drive it into the nets thus spread, and to secure commitments in writing from it to these unlawful demands. The plaintiffs aver that they have entire confidence in the personal integrity and honesty of the members of the board, but unless some immediate remedy is applied to the present condition of affairs, they do not know how long it may be possible to defeat the cunning wiles and clever devices of Mr. Robert P. Manly.
The bill prays that the parties already named may be made defendants, that the board of supervisors be restrained and enjoined from accepting the jail and residence contracted for until completed according to the contract, and all shortcomings and defects supplied and amended, and until all false claims have been rejected, and the true and correct account ascertained and adjudicated, and the property freed from any claims for material and labor; that the board of supervisors shall be enjoined and restrained from either accepting the building or making any payment whatever to the Manly
Notice was given by the plaintiffs that on November 20, 1896, they would apply to the judge of the Circuit Court of Page county, sitting in vacation, for the appointment of a receiver, and on that day the cause came on to be heard upon the said motion, and upon the bill and exhibits accompanying it; upon sundry affidavits on behalf of plaintiffs; upon the answer of the defendant, which was read as an affidavit, and the exhibits filed with it; and upon affidavits taken upon behalf of the defendant. Thereupon the judge deeming it unnecessary to pass upon the demurrer to the bill, entered a decree directing the sheriff of Page county to proceed forthwith to put the supervisors in possession of the jail building, yard, and appurtenances connected therewith, but without prejudice to any of the questions involved or proper to be decided in this cause between fciie «arties, and that the supervisors proceed forthwith to put the jail in condition to be used for the purposes for which it was designed, and concluding thus: “It is further ordered that the clerk of the Circuit Court of Page county, Ya., shall issue process, returnable to the next regular term of the Circuit Court of Page county, directing the board of supervisors in its official capacity to appear and- do whatever is proper to protect its interests.” From that decree an appeal and supersedeas was allowed to the
The board, of supervisors as such was not at the date of the decree complained of a party to this suit. That it should have been, and was not, plainly appears to have been the opinion of the learned judge of the Circuit Court, and that he was right in this respect is established by the ease of Stuart & Palmer v. Thornton & others, 75 Va. 215.
We do not propose to question the right of tax-payers to come into a court of equity to protect their interests in a great variety of cases. We shall confine our discussion of the subject to the case under Consideration.
The board of supervisors was clothed by statute law with the duty of providing a jail for the county of Page, and of keeping it in good order. Code of Yirginia, section 925. The Circuit Court, by section 931, is given authority to compel the supervisors to perform this duty, but its jurisdiction in that behalf is to be exercised by mandamus, and not by a bill in equity. Upon the board of supervisors then was imposed the duty, and in it was vested the requisite power to erect a jail, ana that involved the authority to make all necessary contracts with respect thereto, and from time to time, as it might see fit, to make alterations and changes in the pro-' visions of the original contract. All this is not questioned; but it is claimed that the individual members of the board of supervisors are without authority in the premises, and that only the board acting in its corporate capacity was capable of contracting or of authorizing changes or alterations in the contract which had been made. This is also free from doubt. The only question for us to consider is whether the plaintiff under the facts of this case have any footing in court.
The board of supervisors is not a party to this suit, or at least was not when the decree complained of was rendered. There is no averment that in making the contract it was acting in excess of the authority conferred upon it by law.
The gravamen of the bill is, that the contract, which it is admitted the board of supervisors had the right to make, and in’.which the interests of the county of Page have been carefully protected, has not been fulfilled and performed by the other party in such a manner as to entitle it to demand payment at the hands of the board. The contract provided precisely what the manufacturing company w as to do. The question of its rights and the liability of the county of Page are to be ascertained by reference to it? terms, and in this, as in other contracts of a like charactei, if the building has not been erected as contracted for, the remedy at law is plain, adequate, and complete. To hold that a tax-payer can come into a court of equity in a case in which no fraud is charged, and where there is no pretence that the board was transcending its power, merely to settle an account between a claimant and the board of supervisors, would be to extend the jurisdiction of the court far beyond the limit sanctioned by any adjudicated case or text writer to which we have been referred.
In the 18th volume of English Chancery Beports, at page 248, Flewin v. Lewis, Lord Chancellor Cottenham, speaking of the power of the Poor Law Commissioners, uses the following language: “I apprehend that the limits within which this court interferes with the acts of a body of public functionaries, constituted like the poorlaw commissioners, are perfectly clear and unambiguous. So long as those functionaries strictly confine themselves within the exercise of those duties which are confided to them by the law, this court will not interfere.
This statement of the law is approved by Dillon in his work on Municipal Corporations, sec. 922, and note 3.
Dillion, after considering the decisions upon the subject, states the principle to he “that the proper parties may resort to equity, and equity will, in the absence of restrictive legislation, entertain jurisdiction of their suit against municipal corporations and their officers, when these are acting ultra vires, or assuming or exercising a power over the property of the citizen, or over corporate property or funds, which the law does not confer upon them, and where such acts affect injuriously the property owner or the taxable inhabitant. But if in these cases the property owners or the taxable inhabitants can have full and adequate remedy at law, equity will not interfere, but leave them to their legal remedy.”
Sections 836, 837 and 838, of the Code, provide a remedy for any person having a claim against the county, and afford ample protection to the claimant, to the county, and to the tax-payer. Provision is made for an appeal from the decision of the board, and it is difficult to perceive how the right of the county could have been more carefully guarded. In the first place, before the claim can be paid it must be approved by the board of supervisors. If it be allowed by the board, the attorney for the commonwealth may, if he deems it im
It is unnecessary to decide that the provision which requires the attorney to appeal at the instance of six tax-payers was intended to be in lieu of the right of tax-payers to resort to a court of equity, but, in the absence of any specific equitable claim or right, or of any peculiar fact or circumstance giving a court of equity jurisdiction, it might be reasonably contended that this provision affords a sufficient protection to the tax-payer, and was designed by the legislature as a plain and inexpensive substitute for the jurisdiction theretofore exercised by courts of chancery at the suit of tax-payers feeling themselves aggrieved. It is unnecessary for us to pass upon this question, and we make no decision upon it.
Another ground upon which the jurisdiction of a court of equity was invoked was that a receiver might be appointed to preserve the property which is alleged to be rapidly going to ruin and decay. The right to the possession of county property is in the board of supervisors. If, perchance, the actual possession of it be in another, the board may proceed at law to regain its rights as other suitors do, or it may acquire possession without resorting to the courts, if that can be done without a breach of the peace or other violation of law. The board of supervisors cannot give a lien upon a public building, nor does the contractor nor do those who furnish materials, nor the artisans employed in its construction acquire a lien of any kind upon it. Those who contract with the board of supervisors to do work for the county, or furnish materials to it, do so not upon the expectation of securing their compensation by a lien, but solely upon the faith and credit of the county. From whatever point, therefore, this case is viewed the plaintiffs are without a standing in a court of equity.
Reversed.