16 Mont. 278 | Mont. | 1895
The appellant contends that the warrant in controversy is not in legal form. This contention is based upon the fact that the warrant is signed by the chairman and clerk of the board of trustees of the school district in their official capacity, and not by all or a maj ority of the trustees. It is not disputed that the trustees properly audited the claim for which this warrant was issued. For the purpose of raising funds, and for the issuing and sale of bonds to raise funds for the building of school houses, etc., each school district is declared by the law of this state to be a body corporate. (Comp. St. div. 5, § 1953.) Throughout the school law the trustees are designated the' ‘ ‘Board of School Trustees.5 ’ Section 1951 provides that, when bonds are issued by a school district, ‘ ‘they shall bear the signature of the chairman of the board of trustees, and shall be countersigned by the clerk. ’ ’ From a consideration of the school law of the state, we are of opinion that the warrant is in such form as is contemplated in such cases. We are unable to see that the defendant could have been in any way liable to injury by paying the warrant on account of the form thereof.
The appellant assigns as error the order of the court striking out those parts of his answer noted in the statement. The portions of the answer stricken out set out with great particularity, and at great length, the entire history of the bonds in the sum of $80,000, issued by the trustees of the district,
It is true that defendant alleged in his answer, which was-stricken out, on information and belief, that relator procured and induced the trustees to sell it these bonds at private sale, for the purpose of procuring them at a less price than other investors would have paid for the same if valid, for the purpose of defrauding the district. But this allegation, on information and belief, must be construed in the light of the other allegations in the pleadings. It is not denied that these bonds were first advertised for public sale; that the bids were all rejected, as shown by defendant’s answer. It is further shown by the answer stricken out that relator, in its private bid for these bonds, agreed to take them at par, with an added premium of §6 833.33. These allegations of the answer are absolutely contradictory of and inconsistent with the allegation of fraud made therein on information and belief. We see no-error in the action of the'court in this regard.
The appellant contends that the school district did not be come indebted to or liable to repay the relator the money ad vanced by it to pay warrants issued for the construction of a school building in said district under the contract entered into
The doctrine here contended for by appellant is fully discussed, and a great many authorities collected, in Brown v. City of Atchison, 39 Kan. 37, 17 Pac. 465. In this case the court says : ‘£ From the authorities we think the following principle may be educed : Where a contract has been entered into in good faith between a corporation, public or private, and an individual person, and the contract is void in whole or in part, because of a want of power on the part of the corporation to make it or enter into it in the manner in which the corporation enters into it, but the contract is not immoral, inequitable, or unjust, and the contract is performed in whole or in part by and on the part of one of the parties, and the other party receives benefits by reason of such performance over and above any equivalent rendered in return, and these benefits are such as one party may lawfully render and the other party lawfully receive, the party receiving such benefits will be required to do equity towards the other party, by either rescinding the contract and placing the other party in statu guo, or by accounting to the other party for all benefits received for which no equivalent has been rendered in return; and all this should be done as nearly in accordance with the terms of the contract as the law and equity will permit. ’ ’
In Morawetz on Private Corporations (section 689) this doctrine is thus stated : £ 1 After a contract entered into by a corporation has been performed by either of the contracting parties, the fact that the making of the contract involved an unauthorized exercise of corporate power on the part of the company will not constitute a defense to an action brought by the party having performed the contract to recover compensation for a breach of the contract by the other party. ’ ’ In section 721 the same author says : ££The general rule is that, if an agreement is legally void and unenforcable by reason of some
In Pimental v. San Francisco, 21 Cal. 352, the city had received money from the unauthorized sale of land, and refused to refund the same. In speaking of the rights of the purchaser to recover money paid for said lands at said void sales, Mr. Chief Justice Field says : £ ‘ This alleged want of privity, as we understand it, amounts to this : That, inasmuch as the mayor and land committee had no authority to make the sale, they had no authority to pay the money which they received from the bidders into the treasury of the city, and therefore no obligation can be fastened from such unauthorized act upon the city. The position thus restricted in its statement is undoubtedly correct, but the facts of the case go beyond this statement. They show an appropriation of the proceeds, and the liability of the city arises from the use of the moneys or her refusal to refund them after their receipt. The city is not exempted from the common obligation to do justice, which binds individuals. Such obligation rests upon all persons, whether natural or artificial. If the city obtain the money of another by mistake, or without authority of law, it is her duty to refund it, from this general obligation. If she obtain other property, which does not belong to her, it is her duty to restore it, or, if used, to render an equivalent therefor, from the like obligation. (Argenti v. San Frcmcisco, 16 Cal. 282.) The legal liability springs from the moral duty to make restitution; and we do not appreciate the morality which denies in such cases any rights to the individual whose money or other property has been thus appropriated. The law countenances no such wretched ethics. Its command always is to. do justice. ’ ’ From these authorities it seems clear .that if, in making
The appellant finally contends that the relator is not entitled to recover in the proceeding, under the provisions of an act of the legislature, entitled: “An act to authorize the board of school trustees of any school district of Montana to repay from the proceeds of the sale of bonds any money heretofore loaned or advanced to it for the erection of a school house or school houses in such school district, ’ ’ approved February 18, 1895. This act is as follows: “Whenever heretofore money has been loaned or advanced to the board of school trustees of any school district for the erection of a school house or school houses therein by any person or corporation, in reliance upon the proceeds of the sale of bonds for the payment of the same, the issuance of which bonds had been voted
The appellant insists that this law is in conflict with section 3, art. XIII, and section 13, art. XV of the constitution of the state. Section 3, art. XIII, is as follows: “All moneys borrowed by, or in behalf of the state, or any county, city, town, municipality, or other subdivision of the state, shall be used only for the purpose specified in the law authorizing the loan.” Section 13, art. XV, is as follows: ‘ The legislative assembly shall pass no law for the benefit of a railroad or other corporation, or any individual or association of individuals, retrospective in its operation, or which imposes on the people of any county or municipal subdivison of the state a new liability in respect to transactions or considerations already passed.” We think that it is clearly shown that the money advanced by relator was used ‘ ‘for the purpose specified in the law authorizing the loan,” as required by section 3, art. XIII, of the constitution. The law authorized the loan of money for the purpose of building a school house in the district. The relator advanced the money for that purpose on the bonds conditionally sold to it by the trustees, and it is not disputed that the trustees used the money for that purpose only.
The appellant contends that the law of February 18, 1895,
In New Orleans v. Clark, 95 U. S. 644, a case involving the constitutionality of such legislation, the court says: “The constitution of Louisiana of 1868, which provides that no retroactive law shall be passed, does not forbid such legislation. A law requiring a municipal corporation to pay a demand which is without legal obligation, but which is equitable and just in itself, being founded upon a valuable consideration received by the corporation, is not a retroactive law; no more than an appropriation act providing for the payment of a pre-existing claim. The constitutional inhibition does not apply to legislation recognizing or affirming the binding obligation of the state,- or of any of its subordinate agencies, with respect to past transactions. It is designed to prevent retrospective legislation injuriously affecting individuals, and thus protect vested rights from invasion.5 ’ See, also, Read v. City of Plattsmouth, 107 U. S. 568, 2 Sup. Ct. 208; Louisiana v. Wood, 102 U. S. 294.
We have carefully considered all the assignments of error presented in this case. We have been unable to discover any reason or law to support the contention of appellant that relator is without right or remedy in this case.
The judgment of the court is. affirmed.
Affirmed.