Boshears v. Foster
| Decision Date | 20 December 1926 |
| Citation | 290 S.W. 387,154 Tenn. 494 |
| Parties | BOSHEARS ET AL. v. FOSTER ET AL. |
| Court | Tennessee Supreme Court |
Appeal from Chancery Court, Scott County; J. H. Wallace, Chancellor.
Suit by E. S. Boshears and others against J. I. Foster and others. Decree for defendants, and complainants appeal. Affirmed.
The bill in this cause was filed on January 14, 1924, by a number of resident taxpayers of Scott county against the holders of a number of bridge warrants issued by the judge of the county court to J. I. Foster and by him assigned to the present holders.
The theory of the bill is that such warrants are void, and the prayer is that the defendant be enjoined from collecting same by suit or otherwise. The county trustee was also made a defendant, and it was sought to enjoin him from paying said warrants.
There is much in the record to indicate that this is a county factional controversy, a matter with which this court is not concerned.
Many questions have been raised, a number of them being rather technical in character, and in this opinion we will only deal with those matters which in our opinion merit consideration.
In 1920 and 1921, the defendants, J. I. Foster and E. J. Foster constructed two bridges for Scott county, one across New river at Cordell, and the other across Clear Fork river at or near the Burnt Mill ford. The bridges were completed in September, 1921, were received by the county, and have since that date been in use by the county and its citizens.
Warrants were issued in payment, aggregating approximately $37,000 bearing 6 per cent. interest from the date of their registration by the county trustee. They were negotiated by the payees for the purpose of raising funds to pay for labor and material used in constructing said bridges. A part of said warrants, as well as the accrued interest on same, had been paid when the bill was filed.
It is not alleged that the holders of said warrants were threatening suits, but it seems to be conceded that this suit is maintainable if, in fact, the warrants are void.
A jury was demanded by the complainants, but at the hearing a trial by a jury was waived, and the cause was heard by the chancellor upon oral testimony, the effect being that his findings were equivalent to the verdict of a jury. Choate v. Sewell, 142 Tenn. 487, 221 S.W. 190.
The chancellor found that the bridges were constructed in substantial compliance with the contracts; that the county had accepted same and had been using same continuously; and that the price to be paid, evidenced by the warrants, was reasonable and fair.
A great many questions were injected into the cause as to a construction of the first contract, whether it had been complied with, the quantity of concrete placed in the piers and kindred questions, which the complainants cannot rely upon for the reason that the county was not made a party, and no allegations of fraud or collusion charged against it.
Where the county has authority to act, and does act, its decisions in such matters are final and cannot be collaterally attacked. 15 Corpus Juris, 556.
It can only be questioned directly in a proceeding against it where corruption, fraud, or collusion is charged. 15 Corpus Juris, 658.
It follows that our investigation will be limited to the question of the validity of the warrants.
The power of county courts to build and maintain bridges has been the law of this state since the passage of chapter 1 of the Acts of 1804, the two pertinent provisions of that act being the following:
These provisions were incorporated in the Code of 1858 at sections 1211-1214, and in Shannon's Annotated Code at sections 1707 al-1710.
By chapter 1, § 44, Acts of 1891 (Shannon's Annotated Code, § 1707), it is provided:
"Be it further enacted, that all acts passed heretofore providing for the working and laying out of public roads, except such as are incorporated in this act, as well as laws in conflict with this act, be and the same are hereby repealed, it being the intention of this act to compile all laws on the subject of working and laying out of public roads, and to include them in this act; provided, that nothing in this act shall be taken or construed to in any way alter, impair, or abridge the power the county court now has to build, repair and maintain bridges and turnpikes, and pay for same out of general county funds, nor shall this act in any way abridge the power of the county court, through commissioners and a superintendent of the county jail or workhouse, to work certain convicts upon any public highway in this state, with the aid and superintendence of the local commissioner and overseer, or independently of them."
Thus it clearly appears that the Legislature, by general road laws, did not intend to repeal the general powers of county courts to build bridges.
The same purpose finds expression in chapter 750, § 14, Private Acts of 1921, a local road law for Scott county, upon which complainants largely rely.
The power of the counties to build bridges has been repeatedly upheld by this court. Wood v. Tipton, 7 Baxt. 112, 32 Am. Rep. 561; Moses v. Sanford, 2 Lea, 659; Epperson v. Shelby County, 7 Lea, 277; Ledbetter v. Turnpike Co., 110 Tenn. 95, 73 S.W. 117; Railroad v. Hamblen County, 115 Tenn. 531, 92 S.W. 238.
It would be an unfortunate situation if a bridge across a river on an important highway were swept away by flood and the county court could not replace it until the Legislature met and authorized it.
The situation is this: The county, through its officials, undertook to contract for these bridges; they were duly constructed, accepted by the county, have been constantly used by the public, and they are worth what the county agreed to pay. Are the warrants invalid?
It is fairly deducible from the record that the county needed these bridges and purposed to construct them without having to issue bonds. It was not contemplated by the parties that they should be paid for when completed, but that warrants should be issued to the contractors, drawing interest from the date of their registration, and that the trustee should pay them as funds became available. And such was the procedure being followed when the bill in this cause was filed.
In Camp v. Knox County, 3 Lea, 200, it was said:
4. To audit all claims for money against the county.
5. To draw all warrants on the county treasury.
8. To enter in a book, to be known as the warrant book, in the order of issuance, the number, date, amount and name of the drawee, of each warrant drawn upon the treasury.'
By Code, § 422:
'No money shall be drawn out of the treasury of the county except upon the warrant of the judge or chairman of the county court.'
By Code, § 427:
'It shall be the duty of the county trustee:
3. When a warrant is presented to him for payment to enter it in a book kept by him for the purpose, ruled in columns, so as successively to show the number, payee or holder, date, day of presentation, and...
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