Tooele Bldg. Ass'n v. Tooele High School Dist. No. 1
134 P. 894
Utah
1913
Check Treatment
McCABTT, C. J.

(after stating the facts as above).

In its аssignment of errors appellant assails the rulings of the court in sustaining the objections made by respondents to the evidence offered by appellant in support of the allegations of the complaint, аnd also the judgment of the court dismissing the action. When the cause was called for argument in this court, counsel for the respective parties argued the case orally. They also filed printed briefs in which the questiоns presented by appellant’s assignment of errors are elaborately discussed. When the cáse was submitted, this court was in doubt as to whether the complaint stated facts sufficient to constitute a cause of аction, and the case was reopened for argument on that point. The question was thereupon argued by counsel on either side. Additional briefs were also filed by counsel, in which the question is elaborately discussed. This is the only difficult question presented and *368tbe only one involved regarding which we entertain any serious doubt as to which way it should be decided. If the complaint is not vulnerable to the objection that the facts therein alleged do not constitute a cause of action, the judgment must be reversed and the cause remanded for trial on merits.

1 It is settled law in this jurisdiction that a taxpayer can maintain a suit of this character. (Tanner v. Nelson, 25 Utah, 226, 70 Pac. 984; Brummitt v. Waterworks Co., 33 Utah, 289, 93 Pac. 828.) The оbjection, therefore, made by respondents to the introduction of evidence on the ground that “plaintiff has no right or authority to maintain this action” cannot be upheld. If, however, the complaint, as contеnded by respondents, does not contain facts sufficient to constitute a cause of action, the rulings of- the court rejecting the proffered evidence are unimportant and the judgment dismissing .the action must be аffirmed.

Counsel for appellant in their additional or supplemental brief say that the matters contained in that part of the complaint which we, for convenience, have referred to as paragraphs 3, 4, 5, and 6 were pleaded as matters of inducement only, and that these matters were “largely in the discretion of the board and not reviewable.” We shall therefore pass to the seventh paragraph оf the complaint, in that paragraph it is alleged :

(1) “That the vote of the qualified electors of said district was not had to authorize the erection of said school building . . . upon said tract or any tract, . . . or at аll;” (2) that the publication of the notice and the meeting of the board to authorize the contract for the erection of the building were illegal because “Lillian Rowberry had no ‍‌‌‌‌​​‌‌‌​‌‌​​​​‌​‌‌‌​‌‌​‌‌‌​‌‌​​‌‌​‌‌‌‌​​​‌‌​‌​‍notice of the meeting, was not present thereat, and took no part therein;” (3) that the meeting was not a regular or stated meeting but was a special meeting; and (4) that the notice of the meeting for the letting of the contract did not require the bidder to accompany his bid with a certified check for five per cent, of the amount of the bid.

*369So far as material here, chapter 31, section 9, Sess. Laws Utah 1911, provides:

“Immediately after the establishment of each high school district the board of education shall call an election . . . for the purpose of submitting to the qualified electors of such high school district the following questions: 1. Shall the high school district establish and maintain one or more high, schools within the district? ... 2. At what place or places in the high' school district shall high schools be established and maintained?”

Section 11 of the same chapter, among other things, providеs :

“If, at such elections, a majority of the qualified electors shall have voted in favor of the establishment and maintenance of one or more high schools in such district, then the board of education shall establish such high school or schools.”

2 The allegation in the complaint that “the vote of the ■qualified electors of said district was not had,” etc., is not equivalent to alleging that no election was had, •as provided in sеction 9, swpra\ nor is it equivalent to alleging that a majority of the qualified electors in the high school district did not vote to establish and maintain ‍‌‌‌‌​​‌‌‌​‌‌​​​​‌​‌‌‌​‌‌​‌‌‌​‌‌​​‌‌​‌‌‌‌​​​‌‌​‌​‍a high school in Tooele City on the precise tract of land mentioned in the complaint.

3 The general rule is that publiс officers charged with the performance of official duty are presumed to have performed such duty at the proper time and in the proper manner. (Mechem, Pub. Off. section 578; Throop, Pub. Off. section 558; 2 Chаmberlayne, Mod. Ev. section 1202.) In 16 Cyc. 1076, it is said that official acts of public officers, including persons acting in an official capacity, will be presumed to have been

“properly performed, and in general that everything in connection with the official act was legally done, whether prior to the act, as giving notice, serving process, or determining the existence of conditions prescribed as a prerequisite tо legal action, or sub*370sequent to such. act. It is moreover a rule of procedure that the' burden of proving unlawful or irregular conduct rests upon him who asserts it, since there is no presumption of official irregulаrity.”

So in 17 Ency. PL & Pr. 189, it is said:

“Where the illegality of official action is relied on as a ground' for invoking the aid of the court to restrain further action proposed to be taken in consummation thereof and in furtherance of the plan or scheme which it is sought to prevent, the party seeking such relief must allege the facts which constitute the illegality complained of.”

4 It is not alleged in the complaint that no election was held to authorizе the establishment and ‍‌‌‌‌​​‌‌‌​‌‌​​​​‌​‌‌‌​‌‌​‌‌‌​‌‌​​‌‌​‌‌‌‌​​​‌‌​‌​‍maintenance of a high school and the selection of the place therefor as provided in section 9, supra. It is therefore presumed (in fact, counsel for appellant during the orаl argument conceded) that an election was held. And it is presumed that the questions of establishing a high school and selecting the place therefor were duly submitted as provided by law, and that a majority of the qualifiеd electors of the high school district voted to establish and maintain a high school in Tooele City.

5, 6 It is also presumed that notice was sent to Lillian Pow-berry of the meeting of the board of education to authorize the making of a contract for the erection of the high school building; and, since it is alleged in the complaint that the meeting was “not a regular but a special meeting,” it will be presumed that the meeting was an adjоurned meeting of a regular meeting. Splaine v. School Dist., 20 Wash. 74, 54 Pac. 766.

The allegation that the “vote of the qualified electors of said district was not had to authorize the erection of said high school building” is equivalent to alleging that the vote of аll the qualified electors was not had. The allegation does not negative the presumption that a majority of the qualified electors voted to establish and maintain a high school in Tooele City. Stating the proposition in a different form, the *371•allegation, wbicb for tbe purpose of determining tbe sufficiency of tbe complaint is deemed to be true, does not sbow, nor tend to sbow, tbat tbe board of education was not authorized by tbe vote of a Majority of tbe. qualified electors of tbe high school district to establish a high school, select a •site therefor, and erect a school building thereon in Tooele City. Neither is tbe allеgation in tbe complaint tbat Lillian Rowberry bad no notice of said meeting, was not present thereat, and took no part therein equivalent to an allegation tbat no notice was sent to her of tbe meеting. In other words, tbe allegation does not negative tbe presumption tbat notice was duly mailed or sent to Lillian Rowberry. (16 Cyc. 1076, 1077; Cofied v. McClelland, 16 Wall. 331, 21 L. Ed. 339; Stockslager v. United States, 116 Fed. 590, 54 C. C. A. 46.) On tbe contrary, it is entirely consistent with tbe presumption tbat tbe board of education sent Lillian Bow-berry'such notice of tbe meeting.

Tbe complaint in terms alleges tbat tbe contract for tbe •erection ‍‌‌‌‌​​‌‌‌​‌‌​​​​‌​‌‌‌​‌‌​‌‌‌​‌‌​​‌‌​‌‌‌‌​​​‌‌​‌​‍of tbe building in question was awarded to Newton & Sons Company but does not charge fraud, collusion, or bаd faith. As no facts are alleged from wbicb fraud, collu•sion, or bad faith on tbe part of tbe board of education can be inferred, we are not prepared to say that, even if it were •conceded tbаt no notice was sent to Lillian Rowberry, tbe letting of tbe contract could be successfully assailed on tbat •ground. We have a statute (Comp. Laws 1907, section 2496, title “Construction”) wbicb provides tbat “words giving a joint authority to thrеe or more public officers or other persons are construed as giving such authority to a majority of them, unless it is otherwise expressed in tbe act giving tbe authority.” It is not “otherwise expressed” in any of tbe provisiоns of tbe statutes under consideration prescribing tbo powers and duties of tbe board of education. We, however, in deciding this assignment of error against appellant, base our ruling upon tbe legal presumption existing in favor ■of tbe regularity of tbe action of tbe board in letting tbe ■contract rather than on tbe statute mentioned. It is there*372fore unnecessary for us to construe tbe statute in determining this question, and we refrain from so doing.

7 Comp. Laws 1907, section 1891x42, among other things, provides that the board of education, in advertising for bids to build a schoolhouse, “shall require a certified check of not less than five per cent, of the amount of the bid to accompany the same, . . . and the check of the successful bidder shall be forfeited in case he fails or refuses to enter into the contract and furnish the bond required.” It will readily be observed from a cаsual reading of this statute that the certified check is required as an evidence of good faith on the part of the bidder in submitting his proposal to erect the building according to the plans and specificatiоns furnished by the board of education. Should the successful bidder enter into a contract for the erection of.' the building and furnish the bond required, his certified check will have served its purpose and he is entitled to have it returned to him.

8 It being alleged in the complaint that the contract for the-erection of the building in question was awarded to Newton & Sons Company, it is conclusively presumed, there being no allegation in the complаint to the contrary, that Newton & Sons Company furnished a bond conditioned that it will properly perform its part of the contract in a “faithful manner ‍‌‌‌‌​​‌‌‌​‌‌​​​​‌​‌‌‌​‌‌​‌‌‌​‌‌​​‌‌​‌‌‌‌​​​‌‌​‌​‍and in accordance with its provisions,” as provided by statute. The question, therefore, of whether Newton & Sons Company accompanied its bid' with a certified check is wholly immaterial. We are clearly of the opinion that the facts alleged in the complaint do not constitute a cause of action.

The judgment is therefore affirmed; the respondents to. recover their taxable costs in this and in the court below.

FK.ICK, J., concurs. STK-AUP, I., dissents.