140 Minn. 28 | Minn. | 1918
Lead Opinion
Mandamus to the auditor of Lincoln county. The relator demurred to the answer of the auditor and the county. The demurrer was sustained and the auditor and the county appealed.
The relator is the contractor for the construction of a judicial ditch. The engineer gave it a preliminary or progress certificate for work done. By G. S. 1913, § 5541, it is made the duty of the auditor to issue a warrant upon the presentation of the certificate. He refused. His refusal is based upon the claim that the statute is void for want of due process because it does not provide for notice to the county of the application for the warrant; and further, if we get his position, because it does not provide for a notice to the county of the institution of the proceeding sufficient to constitute due process. That section 5541 does not require notice to the county of the application for a warrant was held as a matter of statutory construction in Moody v. Brasie, 104 Minn. 463, 116 N. W. 941. The question of constitutionality was not suggested.
In the drainage scheme of the statute the county is an agency of the state. State v. George, 123 Minn. 59, 142 N. W. 945; Van Pelt v.
There is no doubt whatever of the constitutionality of the statute assailed.
Order affirmed.
Concurrence Opinion
(concurring).
I concur in the result on the following grounds:
This ditch was constructed under a contract in writing between relator as party of the first part and Lincoln county as party of the second part. No question is raised as to the validity of the contract. None could be raised. The proceedings up to that point were unquestionably regular. The contract was valid, unless the whole drainage law is void, and it is not. The statute (section 5541), which enters into the contract, provides that payments shall be made to the contractor on progress certificates of the engineer in charge. There can be no question as to the validity of such provision. They are common, necessary to expeditious transaction of construction business, and do not contravene any public policy. Leighton v. Grant, 20 Minn. 298 (345), 33 Minn. 484, 24 N. W. 297. There is no hearing or trial before the engineer. Notice that he is to issue a certificate is not required by the contract or the statute. Provision for such notice is not necessary to the validity of the contract, 70 Ill. 420; 61 Mich. 28,
It seems to me nothing more is involved in this case. Whether the county is a “party” to a drainage proceeding is of no consequence in this case. In State v. District Court of Thirteenth Judicial District, 138 Minn. 204, 164 N. W. 815, it was said that the county is a party. The majority decision in this case holds that it is not. The result is the same in either event. It is a party to the contract. The contract is a good one. In connection with the statute, it determines that the rights of relator are as relator claims them to be.