Carroll County v. Cuthbertson

• Decision Date: 10 December 1907
• Citation: 114 N.W. 17,136 Iowa 458
• Parties: CARROLL COUNTY v. E. G. CUTHBERTSON, W. C. MAREAN, E. T. PINNEY and JAMES CAIRNS, Appellants
• Court: Iowa Supreme Court

114 N.W. 17

136 Iowa 458

CARROLL COUNTY v. E. G. CUTHBERTSON, W. C. MAREAN, E. T. PINNEY and JAMES CAIRNS, Appellants

Supreme Court of Iowa, Des Moines

December 10, 1907

Appeal from Carroll District Court.--HON. F. M. POWERS, Judge.

JOHN KOTAS and others filed in the office of the auditor of Carroll county a petition praying for the establishment of a drainage district and ditch under chapter 2 of title 10 of the Code, together with bond as required by law. Subsequently J. Roden and others filed an amendment thereto. With this amendment was filed a bond reciting the filing of the petition, and conditioned for the payment of "all costs and expenses incurred in case the supervisors of Carroll county refuse to grant the petition." This bond was signed by the defendants. Thereafter proceedings were had as prescribed by statute until final hearing on September 5 1904, when the petition as amended was rejected. The county paid out costs and expenses, amounting in the aggregate to $ 354.30, which defendants have refused to pay. To the petition alleging these facts and demanding judgment the defendants interposed a demurrer on the ground "that the law providing for the giving of several bonds set forth in the petition herein was at the time of giving said bonds void and of no effect, and for that reason there was no consideration to uphold such bonds." The demurrer was overruled, and defendants electing to stand on the ruling, judgment was entered as prayed. The defendants appeal.

Reversed.

Kitt W Marean and Geo. W. Paine, for appellants.

Chas C. Helmer and E. A. Wissler, for appellee.

OPINION

LADD, J.

The bond sued on was filed in pursuance of section 1940 of the Code, and was "conditioned to pay all costs and expenses incurred in case the board of supervisors refuse to grant the prayer of the petition." This prayer was for the establishment of a drainage district and excavation of a ditch. Preliminary to a decision by the board, the statute provided for a survey and report by a competent engineer, notice to abutting owners, and presentation of claims for damages; and to assure the payment of the costs and expenses incident thereto such bond is exacted. This statute and those following were declared unconstitutional after the proceeding in which the bond was given had been begun, for that they authorized the assessment and levy of taxes on the land benefited without notice to the owner or affording an opportunity of being heard. Beebe v. Magoun, 122 Iowa 94, 97 N.W. 986; Smith v. Peterson, 123 Iowa 672, 99 N.W. 552. Appellants, who are the sureties on the bond, now contend, as it was executed in pursuance of an invalid enactment and they derived no benefit or advantage therefrom, there should be no recovery on condition broken. On the other hand, appellees insist (1) that the bond should be upheld as valid and enforceable independent of statute, and (2) that, as it was executed for the purpose and in fact induced the doing of all that was done and the payment of the costs and expenses thereof by the county, the obligors are estopped from setting up the invalidity of the law under which it was given.

Taking up these propositions in the order stated, it is to be said that a statutory bond may be good at common law though insufficient under the statute, if not in violation of law or public policy. Garretson v. Reeder, 23 Iowa 21; Painter v. Gibson, 88 Iowa 120, 55 N.W. 84. But this is so only when the obligors have, or at least the principal obligor has, derived some benefit or enjoyed some advantage from the giving of the bond. Thus in Armstrong v Mayer, 60 Neb. 423 (83 N.W. 401), the Supreme Court of Nebraska declared a statute authorizing an appeal from the decision of a justice of the peace to the district court in forcible entry and detainer cases unconstitutional because of defect in the title of the act; but in Stevenson v. Morgan, 67 Neb. 207 (93 N.W. 180, 108 Am. St. Rep. 629), and United States Fidelity & Guaranty Co. v. Ettenheimer, 70 Neb. 147 (99 N.W. 652), appeal bonds executed in pursuance thereof to pay costs and rent of the premises while withheld were enforced as common-law obligations on the ground that the principal obligor had by means thereof retained possession of the premises, and therefore the bonds rested on considerations of their own. Another illustration of this principle is found in Daniels v. Tearney, 102 U.S. 415 (26 L.Ed. 187), where the court declared void the Virginia secession ordinance providing that by giving a bond a debtor might prevent the enforcement of execution against him, but sustained an action on the bond given on the ground that the obligor, having enjoyed its benefits by staying execution, was estopped from setting up its invalidity. These decisions are to be distinguished from those for recovery on bonds depending for their consideration solely upon the requirements of statute. The latter uniformly deny liability whenever the statute for any reason has been declared invalid. Thus in a California case, Gibbs v. Tally, 133 Cal. 373 (65 P. 970, 60 L. R. A. 815), a statute requiring every contract filed for a mechanic's lien to be accompanied with a sufficient bond conditioned to pay for the value of labor and materials required, and that upon failure to file such bond the owner and contractor be jointly liable, was declared unconstitutional; and in the subsequent decisions of Shaughnessy v. Am. Surety Co., 138 Cal. 543 (71 P. 701), and San Francisco Lumber Co. v. Bibb, 139 Cal. 192 (72 P. 964), recovery on bonds so given was denied on the ground that these were purely statutory. In Brookman v. Hamill, 43 N.Y. 554 (3 Am. Rep. 731), a statute authorizing the attachment of a vessel was declared unconstitutional, and the bond executed in pursuance thereof to release the levy was held invalid, for that the obligor was entitled to the release anyway, owing to the invalidity of the statute authorizing the levy. See, also, Poole v. Kermit, 59 N.Y. 554. So in Byers v. State, 20 Ind. 47, for recovery on a bond executed to prevent the incarceration of the defendant in a bastardy proceeding, the court denied recovery thereon because the statute requiring it was unconstitutional, saying: "Such a bond is without a valid consideration, and that fact is a bar to an action upon it." But where the bond is not taken in the manner authorized by law nor accepted by a magistrate so authorized, this court is committed to the doctrine that it is enforceable if the prisoner procured his release thereby, on the theory that it was voluntarily executed for his benefit, and he has derived all the advantage which he could have had under a bond taken in the manner prescribed by statute. State v. Cannon, 34 Iowa 322; State v. Wright, 37 Iowa 522. These decisions have been criticized and conclusions to the contrary reached in Robertson v. Shepherd, 165 Mo. 360 (65 S.W. 573), and Dickenson v. State, 20 Neb. 72 (29 N.W. 184). But see Dennard v. State, 2 Ga. 137; Rupert v. People, 20 Colo. 424 (38 P. 702) (dissenting opinion by Elliott, J.). The distinction is...