124 Minn. 78 | Minn. | 1913
This is an action to recover the contract price for constructing a town ditch established under and pursuant to chapter 127, p. 120, Laws of 1909.
The only question presented is whether the complaint states a cause of action against defendants or any of them. To determine this question it is necessary to take into consideration both the provisions of the statute and the allegations of the complaint. The statute states the conditions under which a town ditch may be established and prescribes in detail the procedure to be followed. It is too lengthy to give even the substance of its provisions, but a brief statement of some of them may serve to explain the conclusions reached.
The act provides that, before any ditch shall be established, a petition therefor, signed by one or more of the owners of the lands to be benefited, shall be filed with the town clerk of a town in which some part of the ditch is proposed to be located (section 2 [G-. S. ■
The complaint shows that, upon a petition signed by defendant Vlaar and one J. J. Maats, the ditch in question was duly established under and pursuant to this law; that the job of constructing it was duly awarded to one. J. T. Tompkins; that' Tompkins duly entered into a contract and gave a hond to construct the ditch and did construct it; that all amounts due or to become due by reason of the construction of the ditch were duly transferred to plaintiff by Tompkins ; that Maats removed to Holland and is not now a resident of this country; that the town clerk duly prepared the tabular statement of assessments provided for in the law and filed the same with the register of deeds; and that such assessments have been paid and the proceeds therefrom are now in the hands of the respective treasurers of defendant towns. The complaint also shows that, under a
Under the law upon which the proceedings in controversy were based, it is clear that the petitioners for the ditch are required to pay the entire cost and expense of constructing it, and that no obligation to pay or advance any part of the same is imposed upon the towns. The towns are not parties to the contract; neither are they, in any manner, parties to the proceeding unless assessed for benefits to the public highways. For the purpose of providing the necessary machinery to carry the law into effect, it imposes various duties upon certain town officers, but, in performing such duties, these officers act as agents of the law, and not as officers of the town. It is well settled that, in such matters, no liability rests upon the municipality unless expressly imposed by law. Bowler v. County of Renville, 105 Minn. 26, 116 N. W. 1028; Merz v. County of Wright, 114 Minn. 448, 131 N. W. 635. Although the proceeds of the assessment are in the hands of the town treasurer, they are no part of the town funds and must be applied and disposed of as provided by the law. Whether they might be reached by garnishment in an action against the petitioners is not involved in this suit. No cause of action existed against the towns and they were entitled to a judgment to that effect.
Defendant Vlaar is one of the petitioners for the ditch and one of the parties to the contract for its construction. Ilis co-obligor is beyond the jurisdiction of the court. Whether the complaint states a cause of action against Vlaar depends upon whether it shows that the requirements of the statute in respect to the construction of the ditch have been complied with and the contract fully performed. The contract is not set forth in the complaint nor included in the return to this court, and we are not informed as to its provisions. The answer alleges that a copy of the contract is attached thereto, but, as this is denied in the reply, we cannot consider the alleged copy. We may properly assume, however, that the contract is in accordance with the requirements of the statute.
The complaint in question, however, does not show that the board were ever informed of the completion of the ditch, or ever inspected it, or ever made the prescribed certificate; neither does it show that they ever refused to inspect the ditch, or ever refused to make the certificate. To entitle plaintiff to recover, it must appear either that the board made the certificate as provided by the statute, or that the facts were such that they ought to have made it, and that they refused to do so. Neither situation is shown by the complaint, and the decision of the trial court was correct.
Judgment affirmed.
[G. S. 1913, § 5634-5671].