81 N.W. 23 | N.D. | 1899
Lead Opinion
In this action, which is brought for equitable relief, the plaintiff, by his complaint, prays for a permanent injunction restraining said defandants, the County of Kidder and its' commissioners, from disbursing or paying over to said other defendants, Fred A. Baker and Charles H. Stanley, or to either of them, any money or county warrant, or transferring to them any land on account of professional services rendered by said Banker and Stanley, or either of them, pursuant to a certain contract, which is hereafter referred to and set out; and plaintiff further prays that said contract be surrendered up and canceled. The complaint. avers, in
The great length of the answer (it covers twenty printed pages of the abstract) will prevent its full reproduction in this opinion, and we shall, therefore, give only the substance of such features of the answer as are, in our judgment, decisive of the case. The answer admits that the plaintiff is a resident and taxpayer of said County of Kidder; that taxes, as stated in the complaint, have been levied and assessed against the lands of the Northern Pacific Railway Company situated in said county, and in this behalf the answer states that the aggregate amount of such taxes, with interest and penalty added, was, on March 1, 1898, the sum of $57,088.16, which amount the answer alleges was “at said date, and is still, due and payable to Kidder county; but that said county had not been able to collect the same, and that the only hope that said county has of collecting said taxes is through and by certain legal remedies and proceedings now being conducted by the defendants Charles H. Stanley and Fred A. Baker, as hereinafter more fully stated.” The answer further sets out in detail the numerous difficulties which defendants allege the County of Kidder has encountered in its endeavors to collect said taxes respectively; and the answer, in this connection, narrates the history of certain ligation had in
It appears that plaintiff’s counsel, upon proper notice, moved in the District Court that the defendants’ answer to the complaint in this action “be stricken out as frivolous, and for final judgment in said action for and in behalf of said plaintiff, as prayed for in his complaint.” This motion was based upon-all the records and files in the action, including the complaint and answer. Subsequent to noticing said motion, and on the nth day of July, 1899, the State of North Dakota was permitted to intervene as a party in said action, and said state thereupon adopted the complaint of the plaintiff as its complaint in intervention; and said answer of the defendants was accepted as the defendants’ answer to the complaint in intervention, and upon said date the record shows, “that said motion to strike out said answer and fo,r judgment was brought on for hearing at a regular term of the District Court.” All parties to the action were represented by counsel at the hearing of the motion and, the same having been regularly submitted for decision, said court made and filed its order herein, which order is, in substance, as follows: That the court found from the allegations of the complaint and answer that the material facts as stated in the complaint are true; and as conclusions of law based upon the facts as so found the court found that the contract in question war, ultra vires and void, and “that the answer herein wholly fails to meet the equities of the complaint.” The court further found as a legal conclusion from such facts that the plaintiff was entitled to all the relief demanded in the complaint. Pursuant to this order,
We first notice the fact that the order of the District Court directing the entry of judgment nowhere makes reference to that feature of the motion in which the District Court is requested to strike out the defendants’ answer as “frivolous.” It is, however, entirely clear that the court below did not in fact strike out the answer as frivolous, or at all; and it is equally certain upon the record that the foundation facts upon which the order for judgment rests consist of 'the admissions and allegations of fact embraced in the answer, when considered as responsive to the averments of fact set out in the complaint. In short, the trial 'court, in its order for judgment, treated plaintiff’s motion as a motion for judgment, upon the pleadings. ■ Such a motion assumes that all facts which are material to a decision of the case, whether found in the complaint or answer, are substantially true as alleged. Counsel have discussed no question of practice in this court, but, on the contrary, have presented the whole case upon its merits, and upon the assumption that the averments of fact in the answer are to be considered by this court and acted upon as true, as was done by the court below. Proceeding upon this assumption, the inquiry arises whether the contract in question is or is not valid in law. In discussing this question it should be first noticed that upon this record no attack can be made upon the contract upon the ground either of failure of consideration or fraud; nor do counsel for the plaintiff contend in this court that the contract is vulnerable upon either ground. The facts, as pleaded, would warrant no finding of actual fraud, and, inasmuch as the disbursement to be made under the terms of the contract is contingent upon the collection of taxes, and the amount of such collection being necessarily uncertain, there could be no valid claim of a total failure of consideration. The contract was entered into by the county board by a resolution in due form adopted at a regular session, and the terms appearing in the resolution, in connection with the letter of Baker) are reasonably clear. In this case the record does not require the court to consider or determine whether, under all the circumstances existing when the contract was made, the same was a prudent measure on the part of the commissioners. The contract is not attacked upon the ground that the same is unwise, inexpedient, or fraudulent in fact. Nor do courts ordinarily sit to supervise and correct official discretion in a case where officers are authorized to exercise an official discretion. The crucial question in the case is whether the contract, as made, or attempted to be made, is a legal contract. If this question, under the law, must be answered in the affirmative, the judgment of the trial court must be reversed; if not, it must be affirmed. The question presented is somewhat complicated in its nature, and one not free from embarrassment. We will first dispose of a preliminary point made by the appellants’ counsel. Counsel allege and claim that the plaintiff has been guilty of laches
But counsel for defendants make the further point that the county commissioners were expressly authorized by law to malee the contract in question, and in support of this contention cite chapter 67 of the Laws of 1897, which law was in force when the contract was made. It does not appear that the commissioners, in entering into this contract, had this statute particularly in mind; nor does it appear that either Baker or Stanley ever performed any professional services in any case or cases arising under chapter 67 of the Laws of 1897. But let it be conceded that the contract is broad enough in its terms to cover any services which could be performed under the provisions of said chapter; nevertheless we are unable to see how such a construction of the contract can aid the defendants. Defendants rely upon a clause of section 7 of said chapter, which reads as follows: “But the county commissioners of the county in which such taxes are laid may employ any other attorney to assist such state’s attorney therein.” A careful reading of said section 7 in connection with the other provisions of said law of 1897 discloses the fact that no services are required to be performed by the state’s attorney itnder the act until an answer has been filed setting forth a defense or objection to the tax sought to be put in judgment pursuant to the act. If no answer is filed in any given case arising under the statute, a judgment is entered by the clerk of the District Court as upon default, and in such default cases all duties required to be performed under the act are intrusted to minsterial officers, and no appearance in court is needed or permissible in such cases. But upon joinder of issue by the filing of an answer it becomes the duty of the state’s attorney to act and proceed with all convenient dispatch to have the issue so formed determined by the court, and in such cases the state’s attorney is officially in charge of the prosecution, and it is with reference to such cases that the statute declares in the language we have quoted from section 7 that the commissioners may employ counsel to assist the “state’s attorney therein.” In the case at bar there is nothing to show that any answer was ever
It appears, however, that Messrs. Baker and Stanley have petitioned the Circuit Court of the United States which appointed said receivers to pay such taxes, and in so doing have performed services and expended money, but in this connection the answer alleges, in substance, that such receivers do no'fc intend to pay said taxes “until they are compelled to do so by the judgment of the highest courts to which the litigation may be carried by them.” If this be the disposition of said receivers, — and it so appears, — it is entirely clear to use that the receivers will not pay the .taxes in question until the courts of this state have declared the same to be valid and legal taxes in proceedings instituted under the laws é of this state. It is apparent, then, that the county commissioners, in entering into the alleged contract of employment, had in contemplation only such legal services as were appropriate and es
It will follow from considerations already suggested in this opinion that the alleged contract of employment is ultra vires and void; but our conclusion in the case has been much strengthened by a perusal of another statute, which, for some reason, not apparent to the court, counsel have omitted to cite. We refer to an act of 1897 found in chapter 120 of the Laws of that year. This statute was enacted for the express purpose of facilitating an amicable adjustment of long-standing differences between the state and the Northern Pacific Railroad Company and the receivers of that company, relating to uncollected taxes which had from year to year been assessed against the lands of the company by county officials in which such lands were situated. Such adjitstment as was contemplated, if made, would include all uncollected taxes on such lands assessed prior to the passage of the act, and would, of course, include all taxes involved in this action. It is a matter of common knowledge that a number of the counties interested have, since the passage of the act. adjusted and compromised their said differences with the railroad company and its receivers, but it seems that Kidder county has not succeeded in doing so. But we call particular attention to a provision of said act found in section t thereof; which reads: “And in case of failure of said commission to reach such agreement, adjustment or compromise on or before the 1st day of July, 1897, the attorney general is hereby instructed to take charge of all the pending litigation between the state and the counties thereof and either of said companies or said receivers and press the same to as speedy a determination as possible.” We think the provision we have quoted, when read in connection with the whole statute, contemplates and provides that as to such of said controversies over uncollected taxes as are not adjusted pursuant to the terms of the statute, the same are to be given over to the attorney general of the state with a view to their speedy determination in the courts, and in all courts, whether state or federal, in which such controversies were pending or might be brought. The aim of the statute
Counsel for the plaintiffs point out a number of other objections to the legality of the alleged contract, but we deem it unnecessary in this case to formally pass upon the same, and we will therefore, in deference to counsel, simply refer to them, and say that we deem them well worthy of serious attention. Counsel claim that the practice of farming out the public revenues for collection to attorneys who agree to collect upon contingent fees is most injurious, and is against a sound public policy; citing Platte Co. v. Gerrard (Neb.) 11 N. W. Rep. 298, which case strongly supports this contention. Again, it is contended that the contract in question is certainly illegal in part, as it provides for paying the state’s attorney out of the public funds a bonus for services which are within his official duty, and for which he is compensated by an official salary. Counsel further claim that the contract is illegal, because by its very terms it requires that the fees agreed to be paid to Stanley and Baker are to be deducted from the identical proceeds of taxes collected by them, a large part of which proceeds do not, under the law, belong to Kidder county, but do belong to the state and certain other political bodies located within the County of Kidder. Again, it is urged that the fees to be paid out consist not only of a percentage of cash collected, but also of lands the title to which might be acquired by the legal proceedings contemplated under the contract of employment. In this connection it is urged that no statute of the state authorizes the conveyance of any land by county commissioners to any person whomsoever without a vote of the people, and upon this point is cited Rev. Codes, § 1905. We need not pusue the matter further. It follows, upon grounds already fully stated, that the judgment entered by the trial court is entirely proper, and the same will therefore be affirmed. The other judges concurring.
Concurrence Opinion
I concur in the result announced in this case, and the grounds upon which I concur are stated in the opinion of 'the court, but are therein so connected with other grounds, to
What may have been done under this contract, or what at the time of its execution the parties may have expected would be done under it, is not, in my judgment, at all controlling in this case. There is no element of fraud in the contract. Everything was done openly. It was a notorious fact that differences of opinion between the Northern Pacific Railroad Company and the officials of the counties in which it owned lands as to the validity of taxes assessed upon these lands had long existed. These taxes, in one form or another, had been in litigation for ten or twelve years. But for certain statutes, to be noticed later, the contract would, in my judgment, have been an entirely proper one to make. Still, as I view it, the commissioners were without authority to make the particular contract. But I do not base this conclusion upon the fact that there was in that county a duly elected and qualified ■state’s attorney; nor upon the fact that such state’s attorney may appoint a deputy; nor upon the fact that the District Court may appoint a state’s attorney to act temporarily; nor upon the fact that the District Court may, in important cases, appoint counsel to assist the state’s attorney. It may be that these provisions may receive the force and effect intended by the legislature, and yet not deprive the board of county commissioners of all power to
But the contract of employment here involved, and which was entered into in November, 1897, was for a specific purpose, to-wit: the collection of the delinquent taxes against the lands of. the Northern Pacific Railroad Company, or its receivers, for the }rears 1889, 1894, 1895, and 1896. There was no specific part of the consideration for any specific part of the services, but all of the consideration for all of the services. It cannot be separated. But as to the collection of the taxes for the r^ear 1895 and all prior years the legislature had, by chapter 67, Laws 1897, made special provision. Under that chapter the state and the various counties were deprived of any rights growing out of purchases by the state or county of any lands at tax sales for delinquent taxes of any of said years, and all such sales were annulled, and the original taxes restored, as if no sale had been made. McHenry v. Kidder Co. 8 N. D. 413, 79 N. W. Rep. 875. In Kidder county, as I understand it, all the railroad lands that had been sold for the taxes of 1895 or prior years had been bid in by the county; hence the act of 1897 operated upon all such sales, and the land stood, when said contract was made, simply as land upon which the taxes were delinquent for those years. In the Kidder County Case, above cited, we held that the collection of such delinquent taxes could be enforced only under the provisions of said chapter 67. It is true the answer in this case sets up various services that have been performed in the federal courts looking toward an order upon the receivers to pay such taxes. But the whole record shows that such taxes are not paid for the reason that their validity is disputed. Of course, the federal court will not order its receivers to pay the taxes while their validity is disputed, and that question can be litigated only in the courts of this state, and, as we have held, must be litigated under said chapter 67. It follows that the services to be performed under the contract must be rendered under the provisions of that statute. But that statute states under what circumstances the county commissioners may employ assistant counsel to act under its provisions. Of course, that excludes the power to emploj’' counsel for the purposes named, under any other conditions. The act