Backhaus v. Lee

• Decision Date: 12 May 1923
• Citation: 194 N.W. 887,49 N.D. 821
• Parties: BACKHAUS et al. v. LEE et al.
• Court: North Dakota Supreme Court

49 N.D. 821

194 N.W. 887

BACKHAUS et al.

v.LEE et al.

Supreme Court of North Dakota.

May 12, 1923.

Syllabus by the Court.

In a taxpayers' suit to enjoin the county commissioners from paying for culverts and bridges, it is held, for reasons stated in the opinion, that the trial court properly refused to grant an injunction.

Appeal from District Court, Emmons County; Geo. M. McKenna, Judge.

Suit by Herman Backhaus and others against T. P. Lee and others, as County Commissioners of Emmons County, and others. From an order vacating a temporary restraining order and denying a permanent injunction, plaintiffs appeal. Affirmed.Lawrence, Murphy & Nilles, of Fargo, for appellants.

Scott Cameron and Zuger & Tillotson, all of Bismarck, for respondents.

JOHNSON, J.

This is an appeal from the district court of Emmons county, Third judicial district, from an order of the trial judge, vacating a temporary restraining order and denying a permanent injunction.

The plaintiffs are taxpayers of Emmons county and brought this suit to enjoin the issuance of warrants for disbursement of money out of the bridge fund of the county in payment for nine structures built under three separate contracts between Emmons county and the defendant and respondent Fogel, doing business under the name of the Linton Bridge & Construction Company. The commissioners entered into three separate contracts with the respondent Fogel for the construction of nine bridges or culverts and for the payment of the contract price, aggregating approximately $14,000. The contract for the construction of projects A, H, and I was executed June 30, 1922; the contract for the construction of projects B, D, E, F, and G was awarded to respondent Fogel on July 20, 1922, and on August 18, 1922, the contract was awarded to respondent Fogel for the construction of project C. Appellant claims that all these contracts were illegal and wholly void for reasons hereinafter stated.

Warrants were issued in full for structures referred to in the record as G, D, E, H, and I; warrants were issued for one-half of the contract price of the structure A; no warrants were issued for B, C, and F. The warrants that were issued were registered with the county treasurer. The record shows that the bill on account of the construction of structure F was allowed by the county commissioners in the sum of $1,713.76. The structures have become a part of the highway system of Emmons county, and hence the materials cannot be returned to the contractor.

Two suits were commenced, but they were consolidated below and on this appeal. Upon the trial of the issues, the court found that the bridges and structures were erected in good faith; that they are necessary; that the county received full value; that the warrants have been issued in payment thereof as indicated in the preceding paragraph; that all the structures were completed before suits were commenced; that the taxpayers of the county now enjoy the use of the structures as a part of the highway system of the county; that the county commissioners, or some of them, with the county superintendent of highways, investigated all of the cases before the contracts were let, and found that in each case the structure was necessary; that the old structures, replaced by new ones, were in bad repair, the timbers rotten, and their use dangerous to the traveling public; and that plaintiffs and other taxpayers of the county made no complaint before the suits were commenced. The court also found that, with reference to structures A, D, and E, petitions were filed as provided in sections 1951-1953, C. L. 1913. The court further found that structures A and B are bridges, A of wood, and B of concrete; that structures C, D, E, F, and H are culverts; and that structure I is a concrete abutment to a bridge. The court specifically found that the county commissioners acted in good faith, and their acts were free from “any suspicion of fraud, collusion, or thought on their part to do anything contrary to law.” The same is true as to the action of the county superintendent of highways, the county auditor, and county treasurer. The court further found that the structures were all properly built, strictly in accordance with the plans and specifications; that the contract price, in each instance, was the reasonable value of the structure; and that Emmons county received dollar for dollar value in these improvements, and did, in fact, receive “everything that under the law it would be entitled to under legal contracts fully performed.”

It is contended by the appellants that the county commissioners had no authority to enter into the contracts with the contractor; that the statutory requirements were not complied with; and that therefore the plaintiffs are entitled to an injunction restraining the authorities of Emmons county from paying the warrants already drawn, and from issuing new warrants in payment of the work. The appellant thus states the gist of the action:

“It is well here to bear in mind that the gist of this action is to enjoin the issuance of warrants or the payment of warrants already issued against the Emmons county bridge fund in discharge of the contract price and consideration for these bridges.”

Section 1951, C. L. 1913, as amended by chapter 72, S. L. 1919, reads as follows:

“Sec. 1951. Petition; Bids.-Whenever a majority of the freeholders of a civil township or a majority of the freeholders living within a radius of three miles of the proposed location, shall petition the board of county commissioners for a bridge at a specified location within such township, or within any incorporated city or village, when the cost of such bridge shall exceed the sum of $100.00, it shall be the duty of the board of county commissioners to view and investigate the necessity of such proposed bridge; and if such county board approves its location and building, it shall proceed to advertise in the official paper of the county, for a period of thirty days, the plans and specifications of the proposed bridge, asking for sealed bids for the building of such bridge, to be submitted to them at their next regular or special meeting, at which meeting of the board it shall proceed to examine all proposals or bids for the building of such bridge, and if such board sees fit they shall award the contract to the lowest responsible bidder; requiring such bidder to give a bond in a sum not less than the amount stipulated in the bid or contract conditioned for the faithful compliance with the terms of such bid or contract, which bond shall be approved by the board of county commissioners and filed in the office of the county auditor.

Provided, however, that the board of county commissioners shall have the authority to refuse any or all bids received, and to proceed to construct such bridge under their own supervision, and in the manner deemed by them most expedient and to enter into contracts for the labor or material to be used in the construction of the same.”

Section 1953, C. L. 1913, is as follows:

“Sec. 1953. Supervision and Repairs of Bridge.-Any bridge built under the provisions of section 1951 shall be under the supervision of the board of county commissioners, and the cost of all such building and repairs shall be estimated by the county commissioners and paid for by the county; provided, however, that should any emergency arise, requiring the immediate rebuilding or repairing of any bridges, the board of county commissioners are hereby authorized to rebuild or repair, as the circumstances require, and without advertising for bids, in case said work can be performed by a responsible party, at a price not to exceed the last bid accepted by said board of county commissioners for like work.”

The failure of the county commissioners of Emmons county to comply with the statutes may be summarized as follows: They failed in all cases to advertise for bids for a longer period than 15 days; in some cases no petitions were filed; and in some cases there were either no bonds executed by the contractor or approved by the board, or the bond which was executed was of extremely doubtful legality and sufficiency.

It will be perceived that the construction and repair of bridges and culverts is within the general scope of the powers of the county board. Upon this state of the record, the question arises whether or not the plaintiff taxpayers are entitled to an injunction restraining the county commissioners from paying money from the county bridge fund to the contractor who has fully performed the work.

The contention of the respondent is that, inasmuch as the record discloses and the findings of the trial court show that the contracts were fairly entered into, fully and honestly performed, full value rendered to the county, and the work was necessary and the subject-matter of the contract was within the scope of the powers of the board, therefore the county, having received and accepted the benefits, and notwithstanding the fact that the contract may be illegal and unenforceable, owes at least a moral obligation to pay the actual and reasonable value of the materials furnished and the services rendered in the construction of the bridges, and that a court of equity should not enjoin such payment. On the other hand, it is contended by the appellant that the contracts are illegal and void; that the courts will not permit recovery upon an implied contract because the court will not permit an act prohibited by law to be accomplished by indirection; and that equity, at the instance of a taxpayer, should enjoin the payment of the warrants.

At the outset, it should be pointed out that this is not a proceeding by the contractor to recover upon a contract or to recover the reasonable value of the services and materials furnished Emmons county in the construction of the bridges or culverts described. It is a suit by taxpayers, invoking the equity jurisdiction of the court, to enjoin the...