Anderson v. Jeannotte
| Decision Date | 19 May 1959 |
| Docket Number | No. 7824,7824 |
| Citation | 96 N.W.2d 591 |
| Parties | Edgar ANDERSON, Norbert Davis, Elmer Hanson, Melvin J. Worrell, and Paul Tastad, Plaintiffs and Appellants, v. Leo JEANNOTTE, Arthur Lindbo and Clarence Bye, individually and as members of the Board of County Commissioners of Rolette County, C. A. Berg, individually, and as the County Auditor of Rolette County; and Howard Stormon, individually and as State's Attorney of Rolette County, Defendants and Respondents. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. The right of a taxpayer to maintain an action to restrain public officers from unlawfully dissipating public funds is a right common to all taxpayers.
2. A judgment for or against a county or its Board of County Commissioners in an official capacity, rendered in an action brought by a taxpayer or taxpayers as such, involving matters only of general public interest such as those relating to public property, funds or obligations, untainted by fraud or collusion is res judicata as to such public matters as are determined by the judgment, and is binding upon all citizens and taxpayers of the county.
Rausch & Chapman, Bismarck, for plaintiffs and appellants.
Duffy & Haugland, Devils Lake, for defendants and respondents.
This is an appeal from a judgment of the district court of Rolette County dismissing an action brought by the plaintiffs to enjoin the defendants, who are the majority of the present board of county commissioners, from taking any further steps to prevent the implementation of a plan for the distribution of the Rolette County memorial fund adopted by the board of county commissioners as formerly constituted. The plaintiffs, who allege that they are taxpayers of Rolette County and bring the action in behalf of themselves and others similarly situated, demand a trial de novo in this court. The controversy, which involves the control of the spending of the money in the Rolette County memorial fund, has been the source of prior litigation that resulted in two former appeals to this court.
The action of Hart v. Bye, N.D., 76 N.W.2d 139, was brought by the plaintiff as a citizen and taxpayer of Rolette County, on his own behalf and on behalf of others similarly situated, against all of the members of the board of county commissioners of Rolette County and the county auditor to enjoin them from carrying out a resolution of the board which provided for the equal division of the memorial fund of Rolette County among the American Legion posts within the county, to be used by them for the purpose of erecting a suitable memorial or memorials or other suitable recognition of the people of the county who lost their lives in the service of their country or rendered distinguished services during World War II. We held that, 'Such a disposition of the memorial fund is clearly violative of Chapter 125, SLND 1947 in that it attempts to vest in organizations other than the board of county commissioners the spending of the money in derogation of the specific terms of the statute.' Judgment on remittitur, pursuant to our decision, was entered in the district court of Rolette County on April 23, 1956.
On the same day that judgment on remittitur was entered, the board of county commissioners of Rolette County passed a resolution, by a vote of 3 to 2, stating in part that:
'* * * the Rolette County Memorial Fund be apportioned into six equal shares for the purpose of the erection of Memorials as heretofore set out, and
'Be It Further Resolved, that the within resolution constitute an offer to the American Legion Posts to join with them in the erection of said memorials and upon acceptance thereof by the American Legion Posts and approval by the County Commissioners the same shall become an irrevocable contract on the part of both parties, and
'Be It Further Resolved that in the event any American Legion Post within the County desires to join the Board of County Commissioners of Rolette County in the erection of a memorial in the city, town, village or community in which said American Legion Post is situated, it may submit a plan in writing to the Board setting out the exact place and form the proposed memorial will take and the manner in which it is to be maintained, and
'Be It Further Resolved that nothing herein shall be construed to prevent the American Legion Post from submitting a plan whereby it is proposed that the Board join with a school district or other governmental agency in the erection of an appropriate memorial; and
'Be It Further Resolved that upon submission of a plan for a Memorial as hereinbefore set out the Board of County Commissioners shall consider the same and determine whether or not it is an appropriate memorial within the statute authorizing such memorials and upon being satisfied that the proposed memorial would be a suitable recognition to the servicemen of this county who lost their lives in World War II, the Board shall indicate its approval thereof by resolution and shall authorize the expenditure of monies from the County Memorial Fund for the erection of such memorial; and
'Be It Further Resolved that the American Legion Post make provision for the perpetual maintenance of said Memorial from their own funds or by such other arrangements for such maintenance, operation and repair as may be made consistent with the laws of this state and to the satisfaction of the Board of County Commissioners, it being the intent to relieve the county of all future responsibility for the maintenance, operation and repair of such memorial, and * * *
'Be It Further Resolved that the title to said Memorials and the property on which said Memorials are to be erected at all times be and remain in the name of the American Legion Post or such other governmental agency with which the Board of County Commissioners and the American Legion shall join in the erection of the said Memorial, and * * *
'Be It Further Resolved that if any one or more of the American Legion Posts of this county shall fail to indicate acceptance of the offer contained herein within one month after the adoption hereof, at a time when such posts are duly chartered as such then the monies contained in the County Memorial Fund shall be reapportioned into as many equal shares as there (are) acceptances of the offer, meaning and intending to provide for the complete disbursement of monies in the County Memorial Fund in the erection of Memorials in conjunction with those American Legion Posts as are willing to join with the Board of County Commissioners.'
In June, 1956, John B. Hart, as a taxpayer, filed a second action against the board of county commissioners, again naming the same five members as defendants, in which he alleged that, by a majority vote, the board of county commissioners was proceeding to expend the monies in the Rolette County Memorial Fund in a manner contrary to that judgment and contrary to law. He asked that the defendants be restrained and enjoined from further proceedings looking toward the dissipation of the fund, and for such further relief as might appear to the court to be just.
When the second action came on for trial, the majority of the board of county commissioners, consisting of three members, appeared in person and by their attorneys who are the attorneys for the plaintiffs in this case. The two minority members filed separate answers, denying any part in the acts complained of in that action. After the trial, and before the case was decided by the district court, one member of the majority, Edward Jollie, had ceased to be a commissioner. He was succeeded by Leo Jeannotte. The trial court ordered judgment for the plaintiff and, on April 15, 1957, judgment was entered enjoining and restraining the defendants from using any part of the memorial fund of Rolette County for division among or use by or on behalf of the American Legion posts of that county, and further enjoining the defendants from using any part of the memorial fund for private purposes or as a donation or loan to any nonpublic body or instrumentality.
The views of the new member of the board, Jeannotte, with respect to this controversy coincided with those of the former minority of the board. Thus the former majority became the minority after trial and before judgment was rendered. On June 4, 1957, the board of county commissioners, by an affirmative vote of the new majority, adopted a resolution rescinding and annulling the resolution of the board dated April 23, 1956, heretofore quoted in part, and other resolutions implementing the plan therein set forth for the distribution among the Legion posts of the Rolette County Memorial Fund, and further stating, 'that the Board...
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