139 N.W. 580 | N.D. | 1912
As disclosed by the complaint, the object of this action is to enjoin the carrying out of a contract for the erection of a new courthouse at Wahpeton, made by the board of county commissioners of Bichland county with the defendants Ingemann & Company. The plaintiffs are residents and taxpayers of said county, and as such they-assert the right to maintain' such suit in behalf of themselves and all other residents and taxpayers of the county who may elect to join with them in the prosecution thereof. That they have such right there is
In Engstad v. Dinnie it was, among other things, said: “The right of a taxpayer to institute an action to enjoin municipal officers from unlawfully dissipating public funds is a right common to all taxpayers, great and small, and mere private interests are not necessarily involved in suits of this character.” See also note to Pierce v. Hagans, 15 Ann. Cas. 1173, 1174, and authorities therein cited. We are clear, therefore, that the second ground of the demurrer is untenable.
The only other ground of demurrer is that the complaint fails to state facts sufficient to constitute a cause of action, and this raises a question of more serious import. Do the facts alleged show on their face that plaintiffs are entitled to equitable relief by injunction or otherwise? Certain preliminary observations may here properly be noticed, which are that nowhere in the complaint is actual fraud or corrupt action on the part of any of the defendants charged or claimed, but it is .the alleged lack of authority to do the various acts complained of that constitutes the plaintiff’s grounds for equitable relief. It is asserted, the correctness of which assertion we think must be conceded, that the construction of the proposed new courthouse involves an extraordinary expenditure of public funds, necessitating a prior favorable vote of the electors of the county, unless, perhaps, as contended by respondents, that there are sufficient available funds, including the tax levy for the current year, to defray the costs thereof. Section 2419, Rev. Codes 1905, grants power to the county commissioners “to provide for the erection and repairing of courthouses,” but provides also that “no expenditure for the purpose herein named greater than can be paid out of the annual revenue of the county for the current year shall be made unless the question of such expenditure shall have first been submitted to a vote of the qualified electors of such county, and shall have been approved by a majority of the votes so cast,” etc. Our attention is also called by appellants to the provisions of chapter 67, Laws of 1909, which amends certain enumerated sections of the Revised5 Codes of 1905 relative to the powers of the board in the matter of extraordinary expenditures of public moneys. Among other things, said statute requires that a proposition for the establishing of a building fund
We are not here concerned with the question of the broad equities ■or on an application for a temporary injunction, of the case as they may be developed by a trial, but we are merely to determine whether on its face the complaint fairly presents a case calling for equitable ■cognizance. In other words, do the facts pleaded disclose a want of equity on the part of those taxpayers? Manifestly they are entitled to the relief prayed for, unless it can be said, under the facts alleged, that respondents are proceeding in a legal manner, or that appellants, by lapse of time, have lost their rights to equitable relief by reason of the greater resulting equities in favor of the public.
After mature deliberation we have reached the conclusion that it was error to sustain the demurrer, and our reasons for this conclusion will be briefly stated. We agree fully with appellants’ contention that the complaint, when fairly and liberally construed, as it must be, •discloses that the board, in letting the contract, failed to proceed according to law. The proposition called for an extraordinary expenditure of public moneys, and should have been submitted to a vote of the people. Sufficient funds were not on hand, nor was any provision made, as required by law, for raising the necessary funds required for the carrying
Order reversed, and the cause is remanded for further proceedings.