Clark v. County of Lancaster

• Decision Date: 17 September 1903
• Docket Number: 13,051
• Parties: WILLIAM M. CLARK, APPELLEE, v. COUNTY OF LANCASTER ET AL., APPELLEES, IMPLEADED WITH CHARLES G. SHEELEY, APPELLANT
• Court: Nebraska Supreme Court

96 N.W. 593

69 Neb. 717

WILLIAM M. CLARK, APPELLEE, v. COUNTY OF LANCASTER ET AL., APPELLEES, IMPLEADED WITH CHARLES G. SHEELEY, APPELLANT

No. 13,051

Supreme Court of Nebraska

September 17, 1903

APPEAL from the district court for Lancaster county: LINCOLN FROST DISTRICT JUDGE. Affirmed.

AFFIRMED.

Lorenzo W. Billingsley, Robert J. Greene, Richard H. Hagelin, Jesse B. Strode and Edmund C. Strode, for appellant.

James L. Caldwell, William T. Stevens, Stephen B. Pound, Frank A Boehmer, Lionel C. Burr and Elmer E. Spencer, contra.

HASTINGS C. AMES and OLDHAM, CC., concur.

OPINION

HASTINGS, C.

This is an injunction suit brought by the plaintiff, as a taxpayer of Lancaster county, to prevent the defendant, Sheeley, from building certain bridges, and from presenting any claim for pay for them or for materials or labor in them; to procure the canceling of his contract with the county commissioners for their erection, and to prevent his collecting a $ 3,000 warrant which had been allowed to him on account of them and was unpaid. It was also sought to enjoin the county commissioners from taking any such action, and the treasurer from paying the $ 3,000 warrant and from transferring from the general to the bridge fund any money of the county. It was also sought to have the county commissioners directed to consider the ordering of bridges in open session and to make a record of their acts concerning that subject. The county was made a party presumably because of its interest in the contract which it was sought to have canceled.

The original petition was filed April 4 and, after alleging the corporate and official character of the parties, stated that the commissioners had entered into an unlawful contract with Sheeley; that the latter, as "first party, agrees to furnish all materials, and to construct and complete ready for travel such bridge work as said commissioners may order built over streams in said county during the ensuing twelve months. Said bridge work to be built according to the plans and specifications attached hereto and made a part of this contract, the same as if written at length herein, and to be the various lengths as ordered, to be built of such material as ordered, conforming to said above mentioned plans and specifications. And the said first party agrees to have the structure ready for travel within ninety days from date of order by said county commissioners. The first party agrees to promptly inspect and pass upon the work, and, in consideration of the materials and labor to be performed by the first party, the second party agrees to pay the first party the amounts set forth in the attached bids. Said payment to be made on completion of said bridge work as ordered, in warrants drawn on the county treasurer of said Lancaster county. The second party will, however, allow first party such estimate for material delivered as, in said second party's judgment, is proper and customary. The party of the first part shall within sixty days from date file a bond in the sum of $ 2,000, guaranteeing the faithful execution of this contract, with sureties satisfactory to said commissioners." That Sheeley had not given the bond; that on February 24, he had presented claims to the amount of $ 8,000 for materials under this contract, which had been allowed and two warrants, one for $ 5,000 and one for $ 3,000 issued to him, the larger of which had been paid; that these claims were fraudulently allowed; that no bridges had been ordered and the commissioners knew when allowing them that no materials had yet been furnished; that there was not to exceed $ 1,200 in the bridge fund of the county at the time of their allowance; that about February 24, to provide funds to pay these claims, the commissioners directed $ 4,000 to be transferred to the bridge from the general fund, and dated their order March 12, 1902; and the money was paid on the $ 5,000 warrant but was not paid for bridge material; that two of the commissioners have issued orders for bridges, when not in session, and without the knowledge or assent of the chairman of the board; that defendant was proceeding to erect bridges, as he claimed, under this contract, to the amount of $ 22,600, upon such orders, and at prices and an expense to the county greatly more than was necessary or had been before paid.

On April 16 all the defendants except Tilton, the chairman of the board, and Knight, county treasurer, answered by a general denial. On the same day the plaintiff, Clark, filed an amended petition embracing all his former allegations. In addition he alleged the following advertisement for bridge bids:

"Notice is hereby given that sealed bids will be received at the office of the county clerk at Lincoln, Lancaster county, Nebraska, until 12 o'clock noon, Saturday, February 15, 1902, for the building of all bridges that shall be ordered for the ensuing year. All bids shall be accompanied by plans and specifications and a certified check in the sum of $ 500. The board of county commissioners reserve the right to reject any and all bids. Address all bids to D. A. Frye, county clerk.

"Lincoln, Nebraska, January 22, 1902."

Also, that other parties made bids, but the Sheeley contract resulted; that his bid was fraudulent and misleading and not by the lineal foot, as the law requires, but for a certain sum per lineal foot, and an additional amount for substructure or superstructure; that his bid was not the lowest and best, and that there was no authority to award him the contract; that no plans and specifications were previously adopted, and there was no power to let an annual contract, and that the alleged one was unlawful and void.

On the 5th day of April notice had been given each of the defendants of the filing of the original petition and of the substance of its allegations, namely, that the contract of February 21 was unlawful and void, and that the allowance of $ 8,000 to Sheeley was also unlawful; that there was no power to make the contract and that it was the result of an unlawful combination of defendants, and that all proceedings under it would be asked to be enjoined. April 11 was set as the day for hearing. On that day the notice was filed but the hearing seems to have been deferred until April 22 and 23, after the filing of the amended petition. April 26 a temporary injunction was allowed against all defendants except the county and the treasurer. They were to be forbidden to construct or repair any more bridges under the contract, or to file claims for work done, and the commissioners were to be enjoined from allowing any claims and from ordering any more work done under the contract. This was conditioned upon the giving of a $ 5,000 bond, which was not done.

On May 27 defendants, Borgelt and Welton, county commissioners, again answered, admitting the official character of defendants, the advertising for bids and making of contract with Sheeley, the allowance of $ 8,000 to him and issuance of warrants for it, and the transfer of $ 4,000 from the general to the bridge fund. They deny plaintiff's other allegations. They say the contract was let in good faith on the lowest and best bid; that Sheeley had done a large amount of work under it and by orders from the board; that they are willing that an accounting be had between the county and Sheeley, and ask that it be had, and that plaintiff be cited to appear for that purpose.

In the meantime, apparently, a cross-petition had been filed by the county attorney, which does not appear in the transcript. It seems to have asked for an accounting between Sheeley and the county. At all events, on the same 27th day of May defendants, Borgelt and Welton, answered such a cross-petition by setting up that they and defendant Tilton were the county board; that they represented the county and that the county attorney had filed his cross-petition without authority from them or from any taxpayer. They denied any collusion and fraud; said that all the work done by the contractor had been ordered by the board and was all needed, and was done for the lowest obtainable price. In this answer, too, they ask for an accounting on the basis of the contract and of the $ 8,000 paid.

Plaintiff replied to their answer by a general denial.

On June 26 the county attorney filed an amended cross-petition, alleging that the county maintained a court-house and offices for the sessions of the county board; that the board advertised for bids on bridge building for the year 1902, and although the county board had adopted plans and specifications for the bridges to be built during the year, the advertisement called for bids to be "accompanied with plans and specifications"; that defendant Sheeley, thereupon, submitted his bid with plans and specifications; that the latter were in the form of "blue prints" and too voluminous to copy, but are referred to as a part of the cross-petition; that such procedure was unlawful, and no annual contract was authorized except upon the basis of the previously adopted plans and specifications, which each bidder could and must make the basis of his bid; that the county board pretended to adopt the defendant Sheeley's plans and unlawfully and fraudulently pretended to accept his bid and enter into the contract with him and, without advertising for competition on any plans and specifications adopted by the board, and without reasonable care to secure competition and the letting of the contract to the lowest and best bidder; that the contract was signed by the commissioners each individually and is not binding upon the county.

The county attorney further says that the accepted bid was not the lowest and best one, that it was so declared arbitrarily and without consideration of others, in...