Pomerene v. School District No. 56

56 Neb. 126 | Neb. | 1898

Irvine, C.

In substance the petition in the district court alleged that the voters of the defendant school district September 12, 1887, authorized the issue of bonds in the sum of $16,000 to .complete a ward school building and to erect a high school building, and at the annual meeting held April 2, 1888, the board of education was by the electors authorized to put into the high school building, then in course of construction, a steam heating apparatus; that of the proceeds of the bonds $4,000 was used in completing the ward building, and $10,000 in constructing the high school building; that the board advertised for bids for the steam heating apparatus, Pomerene & Percival tendered a bid therefor and the contract was let to them. A copy of the bid and acceptance is incorporated into the petition. The bid provides for payments as follows: “On completion of the work $325 cash payment; $500 in warrant due Sept. 1, 1890; $500 in warrant dne March 1, 1891.” The petition then alleged that the board of education accepted the work September 2, 1889, and issued warrants in accordance with the contract; that the war-' rant last to mature had not been paid, although a tax had been levied and collected sufficient to pay it. It was further averred that the price stipulated was the reasonable value of the work performed, and that the claim is now the property of the plaintiff. A demurrer to this petition was sustained, and the action dismissed. It will be seen that the petition, while drawn in a single count, has a triple aspect. It might be regarded as a suit on the warrant, a suit on the special contract, or on a quantum meruit.

So far as the action is based on the warrant it has already been by this court decided adversely to the plaintiff. (State v. Sabin, 39 Neb. 570.) That was an application for a writ of mandamus to compel payment of the warrant. At the close of the opinion it is said that the court was not then required to determine what remedy, if any, was open to the plaintiff; certainly it was not mandamus. While therefore only the duty of paying the warrant was there directly determined, it was held that no such duty existed for the reason that the school board was without authority to issue a “time warrant”—that is, one payable at a future day, and bearing interest. That decision had for its fundamental principle that a district board is limited in its power by the statutes, and that the statutes provide for the creation of debts for erecting school houses by the issuing of bonds. To permit time warrants to be issued would be to suffer an evasion of the statutory conditions under which alone such indebtedness may be incurred. The decision followed School District v. Stough, 4 Neb. 357, where it was said that contracts for the erection -of sehoolbouses should be made with reference to the funds in the treasury for that purpose, and that the board has no power to draw warrants on a fund which has been proposed but not raised. Andrews v. School District, 49 Neb. 420, is in line with the foregoing cases. Counsel refer to certain statutory provisions which they claim imply a right to incur indebtedness otherwise than.by issuing bonds, and we are asked to reconsider the questions decided in the eases cited. The most that can be said of this branch of the argument is that it shows that the main question would as one of first impression- be one whose solution would be attended with doubt, but that is true of all questions where precedent is of -real assistance. It is only those questions where the precedents are clearly wrong that call for re-examination. Where the point is on principle doubtful stare decisis is a safe maxim. The reasons which render the warrant unenforceable apply with equal force to the contract. The case is not like Andrews v. School District, where the contract was lawful and -only the warrants void. Here the contract expressly provides for payment in illegal warrants, and is tainted with the same vice as the warrants themselves.

It is suggested that it is only the district board which is prohibited from incurring debts in such manner, and that the electors themselves may do so or authorize the board in that behalf. But the authority from the electors here pleaded is merely to put in the steam heating apparatus. The requirement of payment in time warrants appears for the first time in the contract made by the board-. The authority granted was to be exercised in a lawful matter. The record affords no basis for an inquiry as to the soundness of the distinction suggested.

Nor can we in this case determine whether, the work having been performed -and accepted by the district, an implied assumpsit arose to pay therefor. If such an obligation -existed the cause of action arose on completion of the work, or at latest on its acceptance, which is shown by the petition to be September 2, 1889. This suit was brought June 7,1895. The statute of limitations is a defense presented by the demurrer, and affords an effective bar to the implied assumpsit.

Affirmed.