County of Ada v. Bullen Bridge Company

• Decision Date: 06 February 1897
• Citation: 47 P. 824,5 Idaho 188
• Parties: COUNTY OF ADA v. BULLEN BRIDGE COMPANY
• Court: Idaho Supreme Court

47 P. 824

5 Idaho 188

COUNTY OF ADA v. BULLEN BRIDGE COMPANY

Supreme Court of Idaho

February 6, 1897

PLEADING-EQUITY.-An equitable action cannot be maintained to cancel county warrants alleged to have been illegally issued, when there exists an adequate remedy at law, either affirmative or defensive.

CANCELLATION OF WRITTEN INSTRUMENT.-A court of equity will not interfere to decree the cancellation of a written instrument, unless some special circumstance is shown to exist, establishing the necessity of a resort to equity to prevent irreparable injury.

SECTION 4928 OF THE REVISED STATUTES CONSTRUED.-Under the provisions of section 4928 of the Revised Statutes, the county can compel the defendants to wage their claims on the warrants sued on in this case, or to forever abandon them.

SAME-ACTION AT LAW.-The action provided for by said section is an action at law, and triable in the ordinary course of law by a jury unless a jury be waived.

SAME-ADEQUATE REMEDY.-The provisions of said section provides an adequate remedy against the delay of defendants in bringing suit to recover on said warrants.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Reversed. Costs of this appeal awarded to respondents.

Hawley & Puckett, for Appellant.

This action was brought by Ada county for the purpose of having certain warrants drawn on the general bridge fund of said county in the years 1891, 1892 and 1893, declared null and void and for the cancellation of said warrants. One question presented at the very outset, of the utmost importance, and which if decided against us would settle the controversy in favor of the respondents, is the right of the county to bring suit to cancel its warrants claimed to be void. The right absolutely and necessarily exists and can be exercised at any time, and whenever in the judgment of the county commissioners an exigency arises which warrants it. (Dillon on Municipal Corporations, 4th ed., sec. 921.) A county may bring and maintain a bill in equity to cancel illegal warrants. (Dillon on Municipal Corporations, 504; Paris v. Cheny, 8 Ohio St. 564; Clark v. Des Moines, 19 Iowa 199, 87 Am. Dec. 423; Webster v. Taylor, 19 Iowa 117; Pulaski v. Lincoln, 9 Ark. 320; Andrews v. Pratt, 44 Cal. 309.) The allowance of a claim is not an adjudication in the sense that it would conclude the county as to the amount allowed. (Cheeny v Brookfield, 60 Mo. 53; Shirk v. Pulaski Co., 4 Dill. 209, F. Cas. No. 12,794; Commissioners v Kellar, 6 Kan. 510; Nashville v. Ray, 19 Wall. 468.) A municipal corporation is not estopped from setting up fraud, or ultra vires, or failure of consideration after issue of warrant. (Thomas v. Richmond, 12 Wall. 349; Webster v. Taylor, 19 Iowa 117; Hodges v. Buffalo, 2 Denio, 110; Halstead v. New York, 3 N.Y. 430; Brown v. Utica, 2 Barb. 104; Anthony v. Adams, 2 Mich. 286; Newbury v. Fox, 37 Minn. 141, 5 Am. St. Rep. 830, 33 N.W. 333, 15 Am. & Eng. Ency. of Law, 1222, and note 2.) Warrants for claims not legally chargeable do not create a liability. (People v. Supervisors, 11 Cal. 170; Trinity County v. McCammon, 25 Cal. 117; Branch Turnpike Co. v. Supervisors, 13 Cal. 190; Linden v. Case, 46 Cal. 171.) No debt can be incurred by a county beyond its revenue, except for necessary expenses. (Bannock Co. v. Bunting, 4 Idaho 156, 37 P. 279; Doon Township v. Cummins, 142 U.S. 366, 12 S.Ct. 221.) Section 1762 of the Revised Statutes must be construed in the light of section 3 of article 8 of the constitution. The submission of the question to a vote of the people is an indispensable requisite for incurring liability exceeding the income and revenue for the year. (Bannock Co. v. Bunting, supra; Idaho Const., art. 8, sec. 3; Rev. Stats., sec. 1762; Rogers v. Board etc., 57 Minn. 434, 59 N.W. 488.) No county board can order a claim paid except by statutory authority. (In re Tinsley, 90 N.Y. 231.) The mode by which a county is bound to provide for repairs to bridges and approaches is statutory and any other contract is void. (Driftwood V. T. Co. v. Board etc., 72 Ind. 226.) That part of the indebtedness which exceeds the limit only will be declared void. (McPherson v. Foster, 43 Iowa 48, 22 Am. Rep. 215; Culbertson v. Fulton, 127 Ill. 30, 18 N.E. 781; Stockdale v. Wayland School Dist., 47 Mich. 226, 10 N.W. 349.) But if it cannot be distinguished which are valid and which are invalid, the whole issue will be held invalid. (Millerston v. Frederich, 114 Pa. St. 435, 7 A. 156.) If the warrants in controversy could have been paid at all, or in part, or the revenue of any year could have been legally applied for their payment, then we contend it was the revenue for the general bridge fund for the particular year in which each of the contracts were made, and no other. No indebtedness of one year shall be paid out of revenue of a future year. (Shaw v. Statler, 74 Cal. 258, 15 P. 833; San Francisco Gas Co. v. Brickwedel, 62 Cal. 641; Schwartz v. Wilson, 75 Cal. 502, 17 P. 449.) He who deals with a municipality must at his peril take notice of its financial standing and whether the proposed indebtedness is in excess of the legal limit. (Atlantic City etc. Co. v. Read, 50 N. J. L. 665, 15 A. 10, 24 Am. & Eng. Corp. Cas. 562; Law v. People, 87 Ill. 385; French v. Burlington, 42 Iowa 614; Mosier v. School Dist., 44 Iowa 122; People v. May, 9 Colo. 80, 10 P. 641; 15 Am. & Eng. Ency of Law, 1124, and note 4.) Those who contract with a municipal body are bound to know the extent of its powers. (15 Am. & Eng. Ency. of Law, 1100, and note 2; Nolan Co. v. State, 83 Tex. 182, 17 S.W. 823.) Bonds or warrants issued in excess of an express statute or constitutional provision are void although in the hands of an innocent holder. (1 Dillon on Municipal Corporations, 531; Moore v. New York, 73 N.Y. 238, 29 Am. Rep. 134; Aspinwall v. Daviess, 22 How. 364; Marsh v. Fulton Co., 10 Wall. 676.)

George H. Stewart and Johnson & Johnson, for Respondent.

This was an action for equitable relief by cancellation of county warrants of Ada county. There is no equity in the bill. If the warrants in question were improperly issued and are illegal and void, the plaintiff had and has adequate remedies at law; and relief in equity to restrain their payment and an action for their cancellation cannot be had. Section 1776 of Revised Statutes is very broad and gives an appeal to the district court "from any order, decision or action" of the board of commissioners, and by section 1779 the matter is heard anew upon such appeal and the court may affirm, reverse or modify the order, decision or action appealed from. (Picotte v. Watt, 3 Idaho 447, 31 P. 805; Ada County v. Gess, 4 Idaho 611, 43 P. 71; Morgan v. Board of Commrs., 4 Idaho 418, 39 P. 1118; Rogers v. Hayes, 3 Idaho 597, 32 P. 259; Clark v. Dayton, 6 Neb. 192; 2 Pomeroy's Equity Jurisprudence, sec. 914; Globe Ins. Co. v. Reals, 79 N.Y. 202, 206; Venice v. Woodruff, 62 N.Y. 462, 20 Am. Rep. 495; Story's Equity Jurisprudence, sec. 700a; Town of Springport v. Teutonic Sav. Bank, 75 N.Y. 399; Kahn v. Walton, 46 Ohio St. 195, 20 N.E. 203; Goshen v. Shoemaker, 12 Ohio St. 624, 80 Am. Dec. 386; Ross v. Singleton, 1 Del. Ch. 149, 12 Am. Dec. 86; Cornish v. Frees, 74 Wis. 490, 43 N.W. 507; S. L. Sheldon Co. v. Mayers, 81 Wis. 627, 51 N.W. 1082; Hunt v. Turner, 9 Tex. 385, 60 Am. Dec. 167; Salmon v. Hoffman, 2 Cal. 138, 56 Am. Dec. 322; Kirby v. Harrison, 2 Ohio St. 326, 59 Am. Dec. 677; Marble Co. v. Ripley, 10 Wall. 354; Atlantic Delaine Co. v. James, 94 U.S. 214; Oakland v. Carpenter, 21 Cal. 642; Atwood v. Fisk, 101 Mass. 363, 100 Am. Dec. 124; Cincinnati etc. R. Co. v. McKeen, 64 F. 36; St. Louis etc. R. Co. v. Terre Haute etc. R. Co., 145 U.S. 395, 12 S.Ct. 953.) Not only are the facts alleged in the complaint equally available as a defense to an action at law upon these warrants, but our statute gives the plaintiff an affirmative remedy, and plaintiff need not wait until it is sued thereon to set up its defense. (Rev. Stats., 4928; Lewis v. Tobias, 10 Cal. 578; Smith v. Sparrow, 13 Cal. 569; Shain v. Belvin, 79 Cal. 262, 21 P. 747; King v. Hall, 5 Cal. 82; Taylor v. Ford, 92 Cal. 419, 28 P. 441.) By article 5, section 8, of our constitution it is provided that the district court shall have appellate jurisdiction and general supervisory control over the county commissioners' court, with such exceptions as may be provided by law. To set aside or void the effect of an order of the county commissioners' court auditing and allowing a claim against the county, this jurisdiction of the district court must be invoked in the proper manner, by an appropriate proceeding; and until it is done, the action of the county clerk must stand as a judgment, and cannot be collaterally attacked by the district or any other court. To the same effect are the cases of Ragoss v. Cuming County, 36 Neb. 375, 54 N.W. 683; State ex rel. Ensey v. Churchill, 37 Neb. 702, 56 N.W. 484; Heald v. Polk County, 46 Neb. 28, 64 N.W. 376, 378; Ragoss v. Cuming Co., 46 Neb. 36, 64 N.W. 378; Cahill v. Colgan (Cal.), 31 P. 617, and cases cited; Hord v. Washington Co., 101 Ind. 69, 9 Am. & Eng. Corp. Cas. 101, 102; Eldorado Co. v. Elstner, 18 Cal. 144.

SULLIVAN, C. J. Huston and Quarles, JJ., concur.

OPINION

SULLIVAN, C. J.

A petition for rehearing was granted. The cause was first submitted to this court without oral argument, but on this hearing the case was fully presented by oral argument and printed briefs. A number of additional authorities were cited. As the facts of the case are fully stated in the former opinion, it is not necessary to repeat them here. The appeal is from the order and judgment of the district court sustaining a demurrer to the complaint. This is a suit, in equity, for the cancellation of...