Huber v. Miller
| Decision Date | 22 January 1960 |
| Docket Number | 7829,Nos. 7828,s. 7828 |
| Parties | Lloyd HUBER, John Weber, Albert Huber, Paul Orso, Reinhold Bauer, Albert Bauer, Oswald Goetz, Ben Gerving, Otto Lennick, Paul Breimeier, George Doll, George Hoffman, and Gordon Gappert, Plaintiffs and Respondents, v. Lloyd MILLER, William Van Oosting, and Norman Jacobson, and County Commissioners of the County of Oliver; Emil Reiner, as County Auditor for the County of Oliver; Arthur H. Isaak, as Treasurer for the County of Oliver; and Oliver County, a Public Corporation, Defendants and Appellants. OLIVER COUNTY, a Public Corporation, With its County Seat at Center, North Dakota, Plaintiff and Respondent, v. William VAN OOSTING, Norman Jacobson, and Lloyd Miller, as Commissioners of Oliver County, and Individually, Defendants and Appellants. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. Under statute providing for an appeal to the district court from any decision of the board of county commissioners by any person aggrieved thereby, appellant must show a person or individual interest in the decision of the board in order to maintain his right to appeal. Any grievance suffered merely as an elector or taxpayer is insufficient to give to such person a right to appeal.
2. A resident taxpayer has the right to bring an action in his own name and on behalf of all other taxpayers to enjoin the unlawful disposition of public funds, and he is not required to show any interest other than that which he has as a taxpayer.
3. The general description of a proposed highway in a proposed county construction program of farm-to-market and Federal-aid roads 'From 7 miles west of Hannover south 9.1 miles to the County line,' would not authorize the construction of the road at a location specifically described as 'Beginning nine (9) miles west of Hannover, thence south eight (8) miles, thence east two (2) miles, thence south to Morton County Line.'
4. Use of public funds to build or improve a highway, which electors authorized to be used to build or improve another highway, constitutes an unlawful diversion of such funds.
Burton S. Wilcox, State's Atty., Center, and Floyd B. Sperry, Bismarck, for defendants and appellants.
Lord, Ulmer, Bair & Daner, Mandan, for plaintiffs and respondents.
STRUTZ, Judge (On reassignment).
The first-entitled action, hereinafter referred to as the 'injunction action,' is an action for an injunction brought by the plaintiffs as resident taxpayers of Oliver County against the defendants as county commissioners of Oliver County, against the county auditor and the county treasurer, and against Oliver County, a public corporation, to restrain the county commissioners from disbursing funds derived from a levy made by the county commissioners under a farm-to-market and Federal-aid program provided for in Section 57-15063 of the 1953 Supplement to the North Dakota Revised Code of 1943. The action originally also was brought against the highway commissioner of the State of North Dakota, but was dismissed as to the highway commissioner by the trial court.
The second action, hereinafter referred to as the 'appeal action,' was an appeal by certain taxpayers of Oliver County from a resolution of the board of county commissioners, which resolution was approved by the board of county commissioners on March 4, 1958.
In 1954, the board of county commissioners of Oliver County prepared a proposed county road construction program of farm-to-market and Federal-aid roads on the county road system. In such proposed program, the county commissioners set forth a general description of the roads to be constructed as part of such program, as required to the county road program law. In the proposed county construction program, the road in question in these two appeals was designed as 'Priority No. 3, Fed.Aid Sec. No. 538.' In that program the road in question was described as being proposed 'From 7 miles west of Hannover south 9.1 miles to the County line.'
After such proposed county construction program had been approved by the State Highway Department and the Federal Bureau of Public Roads, the board of county commissioners submitted the program to the electors of Oliver County together with the question of levying a tax of five mills on the net taxable assessed valuation of all property in the county, such levy to be in force until such proposed program should be completed. Such program was submitted to the electors of the county at a special election called for June 29, 1954, and was approved by a majority vote of the electors at such election.
Thereafter, petitions were presented to the board of county commissioners proposing that the road which had been designated as 'Priority No. 3, Fed.Aid Sec. 538,' which had been described in said program and on the ballot submitted to the voters as 'From 7 miles west of Hannover south 9.1 miles to the County line,' be changed to a location nine miles west of Hannover, thence south eight miles, thence east two miles, thence south one mile to the county line. Good reasons were given by the petitioners for the proposed change, among which was the claim that three times more people would be served at the new location than would be served if the road were built at the location described in the program and on the ballot, which location had been approved by the electors.
Upon receipt of such petitions, the board of county commissioners published a notice in the official county newspaper of Oliver County of a public hearing to be held before the board of county commissioners on the relocation of such road as proposed in the petitions, such notice urging all persons interested in the proposed road to attend the hearing and to present their views. The meeting was held at the time and place fixed in the notice and was attended by a large number of interested persons. The majority of those attending the meeting appeared to be in favor of the new location as requested in such petitions, though no formal vote was taken.
After such hearing, the board of county commissioners passed the following resolution, which resolution was dated September 3, 1957, and was published in the official paper of Oliver County on September 5, 1957:
'The County farm to market and federal aid program priority No. 3 be changed from the general location given on the ballot to the specific location as follows:
'Beginning nine (9) miles west of Hannover, thence south eight (8) miles, thence east two (2) miles, thence south to Morton County Line and that said road be next road to be built under federal aid farm to market program.'
On the same day, September 3, 1957, the board of county commissioners passed a resolution authorizing the chairman of the board to sign an agreement on behalf of Oliver County for the construction of such highway at the location as provided for in the above resolution. The resolution authorizing such signing of an agreement was also published in the official newspaper of Oliver County on October 3, 1957.
The plaintiffs, as resident taxpayers of Oliver County, commenced an action to enjoin the expenditure of any monies raised by such tax levy for building a road at the point described in the resolution, which road would be two miles west of the road as it was described in the proposed county construction program of farm-to-market and Federal-aid roads and in the ballot which had approved the building of such road. The summons and complaint in the injunction action were placed in the hands of the sheriff of Oliver County on October 5, 1957, and were served by the sheriff on the defendants as members of the board of county commissioners, on the defendant county auditor, and on the defendant county treasurer on the 7th day of October 1957. No appeal was taken from the resolution of the board of county commissioners, which resolution was dated September 3, 1957.
After the service of such summons and complaint in the injunction action, the defendant board of county commissioners again considered this matter, without any notice of a public hearing and not at a regular meeting. On October 21, 1957, the board of county commissioners passed a further resolution, again changing the location of said road from the point commencing nine miles west of Hannover, as had been provided in the resolution of September 3, 1957, and placing the location of the road at its original site commencing seven miles west of the town of Hannover. Such resolution, of October 21, 1957, was conditioned, however, upon the giving of easements for right of way by all landowners along the proposed route, commencing seven miles west of Hannover. Such easements were not given.
Thereafter, on March 4, 1958, the easements not having been executed by the landowners along the seven-mile route, the board of county commissioners passed a resolution rescinding their action of October 21, 1957, and reinstating the location of such proposed highway at the point commencing nine miles west of Hannover. The second appeal before this court, herein referred to as the 'appeal action,' is an appeal from such resolution of the board of county commissioners of March 4, 1958.
The first question to be determined is whether the plaintiffs had the right to appeal from the decision of the board of county commissioners changing the location of the proposed road from a point commencing seven miles west of Hannover to a point commencing nine miles west of that place, for if the plaintiffs had a right to appeal from such decision, as the appellants vigorously contend, they had a legal remedy and an injunction suit will not lie. This court has held that an injunction will not issue where legal remedies are or have been available. Fish v. France, 71 N.D. 499, 2 N.W.2d 537; Bismarck Water Supply Co. v. Barnes, 30 N.D. 555, 153 N.W. 454, L.R.A.1916A, 965.
Section 11-1139 of the North Dakota Revised Code of 1943 provides:
'An appeal may be taken to the district court from...
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