Bd. of Supervisors v. Horton

• Decision Date: 10 September 1888
• Citation: 39 N.W. 394,75 Iowa 271
• Parties: BOARD OF SUPERVISORS v. HORTON ET AL.
• Court: Iowa Supreme Court

75 Iowa 271

39 N.W. 394

BOARD OF SUPERVISORS

v.HORTON ET AL.

Supreme Court of Iowa.

September 10, 1888.

Appeal from district court, Mitchell county; J. B. CLELAND, Judge.

The petition of plaintiff shows that during the year 1886 the board of supervisors of Mitchell county was composed of J. H. Ayers, chairman, Harry Counsell, William Penney, and defendants A. T. Tollefson and E. C. Lubiens; that at its January, 1886, session, said board appointed a committee, consisting of Ayers, Tollefson, and Lubiens, to examine two bridge-sites on the Cedar river, called, respectively, “Hansen's Ford” and “McCarthy's Mill,” and make construction estimates, and report at the next session of the board; that further time was given said committee at the April session, and that at the June, 1886, session a majority of the committee reported in favor of building a bridge at Hansen's ford, and that an appropriation of $10,000 be made for that purpose; that said report was adopted by a majority vote, and that Penney, Tollefson, and Lubiens were appointed a committee to let the contract and superintend the erection of a bridge at Hansen's ford; that on the 6th day of July, 1886, a special meeting of the board of supervisors was held, and the action had at the June meeting, which adopted the report of the committee first appointed, and appointed another committee to let the contract for and superintend the construction of the bridge, was reconsidered and the special committee last named was discharged; that defendant Horton was present at the special session of the board, and had actual and full knowledge of the action taken; that on the 3d day of September, 1886, defendants Tollefson and Lubiens entered into a contract with defendant Horton to construct a bridge at Hansen's ford, upon a public highway, for the sum of $9,785; that defendants pretended to make said contract by virtue of the action of plaintiffs taken at the June, 1886, meeting; that afterwards, at its regular September session, but before work had been commenced under said contract, plaintiff ratified the action taken at its special session in July, and disclaimed and repudiated as without authority any act done or contract made by Tollefson and Lubiens, and immediately notified Horton of such action; that Horton threatens to erect a bridge at said ford in a public highway, and has commenced the same, and, if permitted to continue, will greatly obstruct the highway, and hinder and impede travel thereon. Plaintiff asks that the pretended contract be declared void, and that defendants be enjoined from proceeding thereunder, and from obstructing said highway by drawing materials thereon. Copies of the report of the committee, and the proceedings of the plaintiff, are incorporated in the petition. The answer of defendants admits all the proceedings and actions alleged to have been had prior to the July session. It also admits that all the members of the board were present at that session, and participated in the proceedings, but it alleges that Tollefson and Lubiens verbally protested against doing or attempting to do any business on the ground that lawful notice of the meeting had not been given. It avers that the July session was illegal, and the acts attempted to be done thereat void, because of insufficient notice; that the only personal notice of that meeting given to the members of the board was served on the 2d day of July, 1886, and that the only notice of said meeting by publication was given by printing the notice on small slips of paper, which contained nothing else excepting the title “Mitchell County Press Supplement,” and inclosing such slips within and attaching them to a portion of the issue of the Mitchell County Press, a weekly newspaper printed and generally circulated in Mitchell county; that the slips were not sent to all the subscribers of said paper then residing and paying taxes in said county, and were inserted in the issue dated July 1, 1886, but circulated the next day. The answer also admits that Horton knew of the proceedings of the July session at that time, and that they have made a contract, as alleged, for the construction of a bridge, to be paid for by Mitchell county. Commencement of work by Horton is also admitted. A copy of the agreement, and also of the request for a special session of the board, with the notice given by the county auditor, and proof of service, are incorporated in the answer. An amendment to the answer alleges that the July meeting was not authorized by law, and that all proceedings of plaintiff had at that time were unauthorized and void. The plaintiff demurred to the amended answer, on the ground that the facts therein alleged do not constitute a defense, nor entitle the defendants to the relief demanded. The demurrer was sustained, and, defendants refusing to further plead, a decree was rendered for plaintiff as prayed. Defendants appeal.J. F. Clyde and A. L. Grove, for appellants.

M. M. Browne, for appellee.

ROBINSON, J., ( after stating the facts as above.)

The chief question presented for our determination is the sufficiency of the notice given of the special July session of the board of supervisors. This involves a consideration of section 301 of the Code, which is as follows: “Special meetings of the board of supervisors shall be held only when requested by a majority of the board, which request shall be in writing, addressed to the county auditor, and shall specify the object for which such special meeting is desired. The auditor shall thereupon fix a day for such meeting, not later than ten days from the day of the filing of the petition with him, and shall immediately give notice in writing to each of the supervisors personally, or by leaving a copy thereof at his residence, at least six days before the day set for such meeting. The notice shall state the time and place where the meeting will be held, and the object of it, as stated in the petition, and at such special meeting no business other than that so designated in the petition and notice shall be considered or transacted. The auditor shall also give public notice of the meeting, by publication in not exceeding two newspapers published in the county, or, if there be none, by causing notice of the same to be posted on the front door of the court-house of the county and in two other places therein, one week before the time set therefor.” No objection is made to the sufficiency of the request to the auditor, nor to the contents of the notice given by him. But it is insisted by appellants that before a legal special meeting of...