Cheney v. County Board of Supervisors of Buffalo County

• Citation: 243 N.W. 881,123 Neb. 624
• Decision Date: 22 July 1932
• Docket Number: 28323
• Parties: WILSON D. CHENEY, APPELLANT, v. COUNTY BOARD OF SUPERVISORS OF BUFFALO COUNTY ET AL., APPELLEES
• Court: Supreme Court of Nebraska

243 N.W. 881

123 Neb. 624

WILSON D. CHENEY, APPELLANT, v. COUNTY BOARD OF SUPERVISORS OF BUFFALO COUNTY ET AL., APPELLEES

No. 28323

Supreme Court of Nebraska

July 22, 1932

APPEAL from the district court for Buffalo county: BRUNO O HOSTETLER, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. Ordinary " resurfacing" of public gravel highways held to be in the nature of a " repair," and not to constitute an " improvement" as that term is employed in section 39-801, Comp. St. Supp. 1931.

2. Though the extent of such contemplated " resurfacing" of highways in a county necessarily involves expenditures in excess of $500, such county's board of supervisors is not required by law to advertise and on bids received, to let contracts therefor " to the lowest and best bidder."

3. A county board is clothed not only with powers expressly conferred by statute, but possesses such powers as are requisite to enable it to discharge the official duties devolved upon it by law.

Appeal from District Court, Buffalo County; Hostetler, Judge.

Action by Wilson D. Cheney against the County Board of Supervisors of Buffalo County and others. Judgment for the defendants, and the plaintiff appeals.

Affirmed.

O. A. Drake and F. A. Nye, for appellant.

E. G. Reed, contra.

Heard before GOSS, C. J., ROSE, DEAN, EBERLY and PAINE, JJ., and BEGLEY and BLACKLEDGE, District Judges.

OPINION

EBERLY, J.

This is a taxpayer's action for an injunction restraining the defendants in continuing the "resurfacing" of certain improved public roads in Buffalo county with gravel, except by first advertising and awarding contracts as provided by section 39-801, Comp. St. Supp. 1931. There was a trial to the court upon pleadings and certain written stipulations of facts, resulting in judgment for the defendants. The plaintiff appeals.

There is thus no dispute as to the controlling facts. The county of Buffalo owns and operates certain gravel pits, from which gravel is supplied for use on its public roads. It is under township organization, has a population of between twenty-four thousand and twenty-six thousand inhabitants, has a highway commissioner vested with general control, government, and supervision of all public roads and bridges under the authority and direction of the county board of supervisors, and was, and is, adequately supplied with articles of machinery and equipment needed to maintain and construct roads and highways as required by law.

Commencing in January, 1931, the highway commissioner of Buffalo county, without previously advertising for bids, or "letting contracts therefor to the lowest and best bidder" by the county board in the manner contemplated by section 39-801, Comp. St. Supp. 1931, for the purpose of "resurfacing," employed labor, men, teams and trucks to haul and convey gravel from the gravel pits, owned and maintained and operated by Buffalo county, to those portions of the public highways in this county described at length in plaintiff's petition, and the maintenance of which was properly chargeable to that county. Under the terms of their employment, the persons thus engaged thereafter worked from day to day, and week to week, subject to discharge without notice, and under the supervision and direction of the highway commissioner and the county board of supervisors. These employees were paid the compensation as was fixed by the county board of supervisors from time to time, the reasonableness of which is not in issue in this case as presented to this tribunal for determination. Immediately prior to the commencement of this litigation these workers received as compensation for their services a "certain sum per yard per mile." The individual claims of employees for services thus performed were presented to and allowed by the county board of Buffalo county at their usual meeting, ordinarily monthly. The services, so far as disclosed by the record, consisted wholly in hauling the county's gravel from the county's gravel pits and dumping the same on the county's roads where this gravel was to be used for the purpose of resurfacing the same. The cost of this transportation for the highways described in plaintiff's petition was many times in excess of $ 500.

The questions here presented are: Was the method outlined one which the county authorities of this county were justified in following? And were the expenditures entailed thereby such as they were empowered to make?

The determination of the proper scope of the powers vested in the subordinate divisions of the state, and the lawfulness of the exercise thereof by the statutory agencies concerned, necessitates recourse to the terms of the Constitution and the language of the statutes relating thereto.

A county is "a body politic and corporate" (Comp. St 1929, sec. 26-101), whose powers "shall be exercised by a county board, to wit: In counties under township organization by the board of supervisors" (Comp. St. 1929, sec. 26-103), and which include "to make all contracts and to do all other acts in relation to the property and concerns of the county necessary to the exercise of its corporate powers" (Comp. St. 1929, sec. 26-104). Among the powers expressly conferred on county boards is the power "to manage the county funds and county business except as otherwise specifically provided," and "as a board, or as individuals, to perform such other duties as may from time to time be imposed by general law." Comp. St. 1929, sec. 26-105. So the county boards have "general supervision over the public roads of the county, with power to establish and maintain them" as provided by law, "and to see that the laws in relation to them are carried into effect." Comp. St. 1929, sec. 39-101. The duty of maintenance of county roads, including the duty of securing and purchasing and providing suitable and adequate graders and rollers and all other machinery, tools and appliances necessary for the efficient maintenance and repair of the county roads, is expressly imposed. Comp. St. 1929, secs. 39-230, 39-233. So, too, the county boards are expressly empowered and authorized to enter into contracts and use its machinery for the purpose of maintaining state highways. Comp. St. 1929, secs. 39-1404, 39-1408; Saltzgaber v. Morrill County, 111 Neb. 392, 196 N.W. 627. And in addition to this, it will be noted that when this court, in the case of Lynn v. Kearney County, 121 Neb. 122, under the terms of the statute as then existing, held that "counties are without the power express or implied, to contract with townships, whereby, for an agreed consideration, the county will construct and maintain township roads," the succeeding legislature duly enacted chapter 80, Laws 1931, providing in part: "It shall be lawful in all counties under township organization, for such counties to make, alter, repair, and construct roads and / or highways for any...