82 Neb. 414 | Neb. | 1908
This is a mandamus proceeding brought to compel the ■county clerk and the board of county commissioners of Dakota county to set a day and to give a hearing on the report of the engineer on the establishment and construction of a drainage ditch in that county, and to proceed with the* improvement. To the application for the writ a demurrer was filed, and'the cause was argued and submitted upon the issue of law thereby raised.
A brief statement of the facts alleged in the petition is as follows: On the 5th day of August, 1905, a petition was filed with the board of county commissioners of Dakota county, praying for the establishment of a drainage ditch, accompanied by a proper bond which was duly approved by the-county clerk. On the 7th of August, 1905, the county board proceeded to view the line of the proposed ditch, calling to their assistance a competent engineer. While so engaged, they and the engineer were enjoined by the district court for Dakota county from further proceeding. The injunction continued in force till October 23, 1905, when it was dissolved by the court. On the 9th of December, 1905, an entry was made upon the commissioner’s record reciting the filing of the petition and bond, the view made of the premises, and the report made, by the civil engineer; and the board found, in substance, that all the jurisdictional prerequisites had been complied with, and that the improvement was necessary, and “will be conducive to the public health, convenience and welfare.” On the same day objections were filed to the proposed ditch, and at the regular session of the board the report of the engineer called to their assistance for a view was approved and adopted as the report of the board upon the matter. The objections of the remonstrators to the proceedings were overruled, one Martin Holmvig was appointed surveyor and engineer, and was ordered to go upon the line of the ditch and to make a report as required by the statute, and the ditch was or
A number of questions were argued and are presented by the briefs, but the one that lies at the threshold of the inquiry and which must first be determined is as to tin; power of the board to reconsider and rescind the order
It is further argued that the powers exercised by county boards are of two kinds or classes, general and special; that general powers are such as treat generally of the county board and their authority, or relating generally to the county, and that special poAvers are such as are given in a statute relating to particular subjects, and that, even Avliere the right to reconsider has been conferred upon a board by statute, it has been held that it did not extend to the reconsideration of actions taken under a power specially conferred; that the county board being a creature of the statute can only exercise such powers as are conferred upon them, and since the legislature gave the power to establish drains, and did not expressly give the power to revoke, vacate or modify an order made in the exercise of such power, the authority to reconsider does not exist.
The respondents hold that the action of the board in ordering the establishment of the ditch was legislative and administrative in character, Avas not subject to appeal; that the order is subject to the discretion of the board to vacate or set the same aside at any time before the letting of the contract for the construction of the ditch or the assessment of lands to pay for the same; and that the action
. Counsel have with commendable industry cited us to many cases bearing upon the question whether boards of like nature or'powers to the board of county comm issioners have power to reconsider and rescind their action taken at the same or at a former meeting. These questions have arisen in an almost inconceivable variety of circumstances, but the conclusion we draw from an examination of the authorities is that the determination of the question in each case has depended upon the view that the particular court takes as to the nature or function of the act performed by the board in making the order. Where the act of the board is held to be judicial in its nature or involving the exercise of a judicial function, such courts hold that the order made is final and conclusive, and is not subject to reconsideration or rescission by the board. On the other hand, where the courts hold such acts to be legislative or administrative in character, it is 11eld that the discretion of the board to modify, vacate or set aside such orders continues until sucíi time as the rights of third parties have intervened, when they become irrevocable.
Perhaps the supreme court of no other state occupies so decided a position in holding that many of the orders of county boards are judicial in their nature as does that of the state of Indiana. The following cases from that state clearly shoAV the difference between the view that court entertains as to the nature of the acts of such boards in the establishment of highways and acts of like nature and the vieAV heretofore taken by this court. In the case of Plew v. Jones, 165 Ind. 21, the facts Avere that Avithin 30 days after a ditch had been ordered established and constructed certain .parties appeared before the board and filed a motion to dismiss the proceedings, for the reason that the petition was not signed by freeholders as required by law. At the same time other parties appeared and represented to the board that they had originally
But in Indiana it is also held that, where a board of county commissioners has entered an order for the construction of a bridge which it is authorized by the statute, to erect, it has the discretion to build it or not, as it may see fit, and cannot be compelled by mandamus to carry the order into effect. The petition alleged that upon a proper petition the board made an order that a bridge be erected; that it appointed engineers to make a survey and estimate on the location and bridge, and to prepare plans for the piers and abutments, and to file their report with the county auditor, all of which was done and the report accepted and adopted by the board; that it appointed a superintendent to advertise for bids and superintend the work; that after the contract had been let for the abutments and the contractors had performed work of the value of $00, the commissioners removed the superintendent, and refused to pay for the building of the bridge.
In Kansas it is held that, after a city has constructed a sewer or drain for the purpose of carrying off surface water, it may in its discretion wholly abandon or discontinue the same and never make further use of it. The court say: “Cities may often make mistakes in the first instance; in constructing drains. And when they do, it would seem that they should have the power to correct their mistakes, and therefore that they should always have the power to change and alter drains; that they should always have the power of abandoning or discontinuing certain drains and building others.” City of Atchison v. Challiss, 9 Kan. 603. See, also, Higgins v. Curtis, 39 Kan. 283.
In Maryland it is held that an ordinance giving a street railway company the right to lay double track upon certain streets may be repealed and the right limited to the use of a single track. In the opinion the court say: “It is perfectly -well settled that a municipal corporation has a right to abandon any public improvement, and repeal at its pleasure any ordinance providing for the same; and property owners cannot compel it to take and pay for property condemned for such purpose. The right of repeal is unquestionable, but if in the exercise of this un
In Vermont it is held that a town at one meeting may rescind its vote at a prior meeting to aid in the construction of a railroad by subscribing to its capital stock Avlien no rights of third parties have vested and nothing has been done under the Arote, citing two Vermont cases which held that a tOAvn may change its purpose, and, unless some right has been acquired or has vested under its action, no one may complain of the change. Estey v. Starr, 56 Vt. 690.
In Ohio, where the legislature by special act authorized county commissioners to levy a tax and build a bridge, and the commissioners levied a tax Avliich produced a small portion of the money necessary, and the^ commissioners refused to make any further leAry and abandoned the intention of building the bridge, a mandamus to compel further action >vas refused because “the law ‘specially enjoins’ no such duty upon the county commissioners— the duty to persist in a work deemed useless and injurious.” State v. Commissioners, 31 Ohio St. 211.
The language of our statute is the same as that of Ohio, that the writ may be issued to any board “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.” Code, sec. 645.
In Iowa it is held that a county board has power to reconsider at a subsequent meeting its action at a former meeting, ordering the construction of a bridge; that the order was not judicial in its nature, though it required the exercise of a discretion, saying: “It was their duty as supervisors to act for the best interests of the people of the county, and they could acquire no rights as super
In Dodge County v. Acom, 61 Neb. 376, it is said with regard to appeals from an order establishing a drainage ditch: “The exercise of this power is not judicial. The finding and conclusions of the board, to whom the legislature has given authority to act in the manner prescribed, are final and conclusive as to the necessity of the proposed ditch, and that the public health, convenience or welfare will be promoted thereby, and can not thereafter be made the subject of a controversy as to whether correct and well founded or not. It is the exercise of a delegated power, political or administrative in character, conferred upon the county board by the sovereign authority of the state acting through its legislative branch of government. Lynch v. Forbes, 161 Mass. 302; In re Cooper, 28 Hun (N. Y.), 515; Chicago, R. I. & P. R. Co. v. Lake, 71 Ill. 333; Barrett v. Kemp, 91 Ia. 296.” This doctrine is again forcibly asserted in Tyson v. Washington County, 78 Neb. 211, and it is therein stated: “We thinlc that no authority can be found holding that the policy or expediency of constructing any such public work, the exercise of discretion as to which is vested in any administrative board or official, can, in the absence of statutory permission, be interfered with or controlled by the courts; and, if it cannot be so, the reason must be that the exercise of such discretion and functions raises no question of judicial
Prior to 1879 a county board in this state had no authority to reconsider its action upon a claim against the county; this court holding that its action in the allowance or rejection of such a claim is a judicial act which the board had no power to reconsider or set aside. In 1879 the legislature expressly provided that a county board should not be prevented from once "reconsidering their action upon a claim against the county. Laws 1879, p. 366, sec. 40, Ann. St. 1907, sec. 4458; Stenberg v. State, 48 Neb. 299; Brown v. Otoe County, 6 Neb. 111; State v. Buffalo County, 6 Neb. 454; Kemerer v. State, 7 Neb. 130. The view of the court as to the power to reconsider seems to have rested upon the proposition that, the act being-judicial in its character, it could not be reconsidered. The implication is that, if the court had held the act to be discretionary or administrative in character, the board might, until the rights of third parties intervened, reconsider its former action. We have examined all the cases cited by the relator, and conclude that where, as in this state, an order of this kind is considered to be a legislative or administrative act, the county board has the right to rescind in the exercise of this discretion, unless such proceedings have been taken under the original order that rights of third parties have vested. The county board may have erred in its judgment, and upon further consideration should have the right to correct its error. The fact that the individual membership of the board may change should have no weight, in the absence of any injury or wrong to the public or to third parties. The board is a continuing body, and in the public interest it should have the right to reconsider its action if upon better information it concludes that it is inexpedient or disadvantageous to the public welfare. In Indiana, where the act is held to be judicial, a different principle applies; but in the cases from other states wherein the right to rescind was denied, intervening circumstances had made
Have any rights accrued or vested in third persons which placed the order beyond the jurisdiction of the board to reconsider? Before the order was made establishing the ditch, the commissioners had gone upon the land and vieAved the line of the proposed ditch with' a surveyor. This it was their duty to do irrespective of whether the ditch was finally established or refused. The expense of the proceedings up to the time of the order, therefore, cannot be considered. The order establishing the ditch and appointing an engineer was made on December 9, 1905. Appeals were taken, and the petition recites that
The only question remaining is whether the employment of the engineer and his partial performance of the work assigned him was such a vesting of a right in a third party that the order became irrevocable. We think the case is in this respect .similar to one where a county board or a school board employ an architect to draw up plans for a building. The abandonment of the enterprise ■ cannot deprive the architect of remuneration for his work, but the mere fact of his employment can in nowise have the effect to compel the board to erect the building if upon further consideration it deems its former action unwise and inexpedient. The engineer was an employee of the county board. He can only assert the rights given him by virtue of his employment, and his right to compensation for services rendered before rescission cannot operate to compel the board to incur an additional expense which they have determined, upon further reflection, to be against the public welfare.
It is argued that, if the board had the right to reconsider, succeeding boards also have the right, and great public injury might result if such a vacillating policy were permitted. But, if no other rights have intervened, who is harmed? These questions are committed to administrative boards to determine, and if, as has been suggested, the electors of the county might desire a change of policy as to such improvements, and change the personnel of the board for that reason, why should they not have it, if no one has acquired any vested rights which would render it unjust to set aside the former orders of the board.
Under the allegations of the petition, we are of the opinion that the board had the right to reconsider its former action, and reject the prayer of the petition. The demurrer to the petition is therefore
Sustained.