90 Neb. 748 | Neb. | 1912
Lead Opinion
Appeal from a judgment of the district court for Cheyenne county dismissing the action of the appellant, the Western Bridge and Construction Company.
It appears that the commissioners of Cheyenne county, in response to a petition filed for that purpose, determined to construct a bridge across the North Platte river at or near the town of Irving, in that county; that a bridge tax had been levied and collected, and there was available to the county the sum of $11,524.43 for that purpose; that on the 12th day of September, 1908, the board published a notice inviting bids for the construction of the bridge, according to certain plans and specifications, which had theretofore been adopted; that a.t that time there was on file a petition for an election to divide the county. In due time the election was called, and notice thereof was published and given as provided by law; that on the 10th day of October the board opened the bids, and awarded the contract to build the bridge to the plaintiff, hereinafter called the Bridge Company, as the lowest and best bidder, and to that end entered into a written agreement, by the terms of which the plaintiff was required to give a bond to the county in the sum of $2,000 for the performance of the contract according to its terms; that the Bridge Com
Cheyenne county thereafter took no further action in the premises, and on the 9th day of March, 1909, the two boards of commissioners made a settlement of all of the property rights, debts, liabilities and obligations of their respective counties, on the basis of one-third to -Morrill county and two-thirds to Cheyenne county, with the exception of the matter relating to the bridge contract above mentioned. In that settlement it appears to have been stipulated that, whereas Cheyenne county had entered into a valid contract with the Bridge Company to build the bridge in question, and the county boards were unable to agree as to the respective rights and liabilties of the two counties growing out of said contract, the proposed construction of the said bridge and the division of the bridge fund then in the treasury of Cheyenne county, the matters in difference should be settled by the judgment of the district court for Cheyenne county, and an action was duly brought for that purpose.
The contention of the Bridge Company is that the district court erred in finding that Cheyenne county had repudiated the contract in question, and in dismissing its action without granting it any relief in the premises whatsoever. It is also contended by Morrill county that the county board of Cheyenne county had no right or powder, after the organization of Morrill county, to talce any action which in any manner would destroy the rights acquired by that county growing out of the bridge contract
The district court should also have directed and decreed that Cheyenne county was entitled to and should be required to apply one-third of the bridge fund in its treasury at the- time of the organization of Morrill county to the satisfaction of so much of the judgment against it, and that such payment should be a complete satisfaction of Morrill county’s claim against Cheyenne county on account of the interest it had in said bridge fund.
It is further contended by Morrill county that the district court erred in failing and refusing to determine all of the rights, duties and liabilities between it and Cheyenne county, and render judgment thereon in accordance with justice and equity. We think this contention is well founded. By the terms of the submission of the two causes for adjudication, it was the duty of the court to determine all of the matters in controversy in the manner above indicated.
■ For the foregoing reasons, the judgment of the district court is reversed, and the cause is remanded for further proceedings in harmony with the views expressed in this opinion.
Revebsed.
Dissenting Opinion
dissenting.
As I understand the case, the new county was cut off from the old county of Cheyenne before any work had been done on the bridge. This condition gave Cheyenne county the power to rescind the contract because it was executory. It was probably the duty of the board of county commissioners of Cheyenne county to rescind the contract. At least that is what the board attempted to do. I think that the board did what was right. I doubt the authority of the county board to build a bridge in another county than that in which the members of the board reside. I do not think that Cheyenne county should be held