Davis v. Bd. of Com'Rs of Choctaw Cnty.
| Decision Date | 11 April 1916 |
| Docket Number | Case Number: 4796 |
| Citation | 58 Okla. 77,158 P. 294,1916 OK 420 |
| Parties | DAVIS et al. v. BOARD OF COM'RS OF CHOCTAW COUNTY. |
| Court | Oklahoma Supreme Court |
¶0 1. PLEADING--Exhibits--Effect. Where suit is brought on an instrument in writing, for the payment of money, and a copy of such instrument is attached to the petition and made a part thereof, such copy should be considered as a part of the petition when construing the allegations thereof on demurrer.
2. CONTRACTS--Validity--Public Policy. The county commissioners of C. county accepted from D., H., and T. their bond, conditioned that, if the courthouse about to be erected in said county should be located on a certain block in the county seat, they would pay the county the excess cost thereof over and above $ 8,000, but not to exceed the penal sum of $ 15,000. The commissioners, relying thereon, acquired title to said block by purchase and condemnation proceedings at a total cost of $ 10,391.05, and thereupon instituted action against the makers of said bond to recover $ 2,391.05, the amount alleged to be due thereon. Held, that the bond was a valid obligation and not violative of public policy, there being no charge that the commissioners were improperly influenced, or that the public welfare was made subordinate to personal considerations or private gain, or that the location was made in disregard of the public interests.
Error from District Court, Choctaw County; A. H. Ferguson, Judge.
Action by the Board of County Commissioners of Choctaw County against J. W. Davis and others. Judgment for plaintiff, and defendants bring error. Affirmed.
Cocke & Willis, for plaintiffs in error.
Thos. S. Hardison and M. W. Gross, for defendant in error.
¶1 By the terms of a bond made August 12, 1911, J. W. Davis, J. S. Hastings, and C. A. Thompson became obligated and bound unto Choctaw county in the penal sum of $ 15,000, conditioned as follows: That, in consideration of the board of county commissioners of Choctaw county locating the courthouse of said county in block 95 in the city of Hugo, the said obligors "agreed to deliver title to said board of county commissioners," to said block for a sum not exceeding $ 8,000, conditioned that the proper authorities would take all necessary action for the acquirement of title to said block by condemnation proceedings or otherwise, and, in the event said board of county commissioners was required to pay a larger sum than $ 8,000 to obtain such title, then and in that event the said obligors would pay the excess over and above said sum of $ 8,000, with costs. On the 27th day of August, 1912, suit was instituted to recover of the obligors on said bond the sum of $ 2,391.05, alleged to be due the plaintiff by the makers on account of a breach of the conditions of said bond. The petition charged the due execution of the bond, the purpose of which, it was said, was to insure the construction of the courthouse on block 95 of the city of Hugo, and the giving of which caused and induced the county commissioners of said county to locate and build the county courthouse on said block. It was further charged that two of the makers of said bond owned real estate near said courthouse, which, by reason of the near by location of the courthouse, was greatly increased in value, and that it was on this account that said property owners caused and procured said bond to be given. The petition sets forth the difficulty had in procuring by condemnation proceedings the north one-half of said block, at a total cost, it appears, of $ 7,131.05, and charges that on account of the execution of said bond the makers thereof became and were liable thereon in the sum of $ 2,391.05, being the excess over and above the maximum cost of said block, as provided in the bond. To the petition defendants filed a general demurrer, which was overruled by the court, and, said defendants electing to stand on their demurrer, judgment was rendered for the plaintiff.
¶2 The petition is loosely drawn. Had a motion to make more definite and certain been filed by defendants, it should have been sustained. Aided, however, by the bond upon which the action was based, and a copy of which was attached, marked as an exhibit and made a part of the petition, the petition is sufficient as against a general demurrer, according to the rule heretofore announced in Grimes v. Cullison, 3 Okla. 268, 41 P. 355; Whiteacre v. Nichols, 17 Okla. 387, 87 P. 865; Long v. Shepard, 35 Okla. 489, 130 P. 131.
¶3 The remaining question is: Was the bond void as being against public policy? There is no charge of the receipt of a personal consideration by any public official connected with the transaction, or that the acceptance of the bond tended to improperly influence the commissioners in the performance of their public duties, or to induce them to subordinate the public welfare to individual gain. So far as disclosed by the petition, the action of the public officials having to do with the location of the courthouse was wholly free from any influence, except their judgment of the suitableness of the location and the guaranty of cost offered by the makers of the bond. It is not charged that as a matter of fact the location of the courthouse was improperly made or made in disregard of public interest. From the fact that the giving of the bond influenced the action of the board of county commissioners in locating the courthouse, it does not follow that the public interests were not subserved, or that the taxpayers of the county were not the beneficiaries of the transaction. Ordinarily, a more suitable and better site could be procured with the larger means, incurred and paid out on account of the bond, than with a lesser sum. Speaking generally, it is usually necessary, in deciding upon the propriety of a public improvement, to consider, on the one hand, the advantages which are likely to accrue to the public from it, and, on the other hand, the expense and burden which would be imposed by reason of it. These considerations lie at the root of the question whether it shall be done, and, if done, how it shall be done. Where the amount of expense is so great that the undertaking is abandoned, a public gain is lost by reason of the obstacle presented. If the expense can in any way be reduced, so that the balance, after weighing these counter considerations, is in favor of the benefit from the burdens, then the public reaps the advantage. The propriety of the location of public buildings may depend, in some measure, upon the sum proposed to be given by...
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