Deer Creek Highway District v. Doumecq Highway District

• Decision Date: 03 August 1923
• Citation: 218 P. 371,37 Idaho 601
• Parties: DEER CREEK HIGHWAY DISTRICT, Appellant, v. DOUMECQ HIGHWAY DISTRICT, Respondent
• Court: Idaho Supreme Court

218 P. 371

37 Idaho 601

DEER CREEK HIGHWAY DISTRICT, Appellant, v. DOUMECQ HIGHWAY DISTRICT, Respondent

Supreme Court of Idaho

August 3, 1923

CONTRACTS-CONSTITUTIONAL LAW-MUNICIPAL CORPORATIONS-HIGHWAY DISTRICTS-POWERS OF-NOTICE-QUANTUM MERUIT-ESTOPPEL.

1. Contracts entered into and indebtedness or liability incurred in contravention of art. 8, sec. 3, of the constitution are void.

2. There can be no recovery upon a void contract.

3. Where an express contract is in violation of the provisions of the constitution and has been declared void, there can be no recovery for the same transaction upon quantum meruit.

4. An estoppel can never be invoked in aid of a contract which is expressly prohibited by a constitutional or statutory provision.

5. A municipal corporation is chargeable with knowledge of the limitations fixed by law upon the powers of another municipal corporation with which it deals.

APPEAL from the District Court of the Tenth Judicial District, for Idaho County. Hon. Wallace N. Scales, Judge.

Action upon contract. Judgment for defendant. Affirmed.

Judgment affirmed, with costs to respondent.

James F. Ailshie and B. Auger, for Appellant.

The prohibition of sec. 3, art. 8, of the state constitution with reference to contracting indebtedness, was intended to apply to transactions between municipal corporations and individuals or private corporations, and was never intended to prevent the application of the doctrine of estoppel where the transaction is between two municipal corporations organized under the same law and having the same powers. ( City of Colorado Springs v. Colorado City, 42 Colo 75, 94 P. 316; Boise Development Co. v. Boise City, 30 Idaho 675, 167 P. 1032; McQuillin on Mun. Corp., secs 1255, 2637; Argenti v. San Francisco, 16 Cal. 255; Pimental v. City of San Francisco, 21 Cal. 351; Boise City v. Wilkinson, 16 Idaho 150, 102 P. 148; People v. Alturas County, 6 Idaho 418, 55 P. 1067, 44 L. R. A. 122; Hesse v. Strode, 10 Idaho 250, 77 P. 634; Hemenway v. Craney, 36 Idaho 11, 208 P. 410; City of Twin Falls v. Harlan, 27 Idaho 769, 151 P. 1191; Chicago v. Sawyer, 166 Ill. 290, 46 N.E. 759; California-Oregon Power Co. v. City of Medford, 226 F. 957; Railway Co. v. McCarthy, 96 U.S. 258, 24 L.Ed. 693; City of Chicago v. Sexton, 115 Ill. 230, 2 N.E. 263; Hitchcock v. City of Galveston, 96 U.S. 341, 24 L.Ed. 659; Brown v. City of Atchison, 39 Kan. 37, 7 Am. St. 515, 17 P. 465; Portland v. Bituminous Paving Co., 33 Ore. 307, 72 Am. St. 713, 52 P. 28, 44 L. R. A. 527; Nicholasville Water Co. v. Nicholasville (Ky.), 38 S.W. 430; City of Mount Vernon v. State, 71 Ohio St. 728, 104 Am. St. 783, 73 N.E. 515; Thomson v. Town of Elton, 109 Wis. 607, 85 N.W. 424; State v. Wilkinson, 20 Neb. 610, 31 N.W. 376; Moore v. Ramsey City, 104 Minn. 30, 115 N.W. 750.)

The rule of nonliability of a municipal corporation on an illegal contract does not apply where the municipality has made a good faith attempt to pay or perform its part of the contract, but did not act in conformity with the law. ( North River Electric Light Co. v. New York, 48 A.D. 14, 62 N.Y.S. 726, and cases cited.)

A. S. Hardy, for Respondent.

The liability is prohibited by art. 8, sec. 3, of the constitution and by C. S., sec. 1516. (Bannock Co. v. C. Bunting & Co., 4 Idaho 156, 37 P. 277; Ada County v. Bullin Bridge Co., 5 Idaho 79, 47 P. 818, 36 L. R. A. 367; Dunbar v. Board of Commissioners, 5 Idaho 407, 49 P. 409; Ball v. Bannock Co., 5 Idaho 602, 51 P. 454; McNutt v. Lemhi Co., 12 Idaho 63, 84 P. 1054; School Dist. v. Twin Falls etc. I. Co., 30 Idaho 400, 164 P. 1174; Allen v. Doumecq Highway District, 33 Idaho 249, 192 P. 662; Feil v. City of Coeur d' Alene, 23 Idaho 32, 129 P. 643, 43 L. R. A., N. S., 1095; Boise Development Co. v. Boise City, 26 Idaho 347, 143 P. 531; O'Neil Eng. Co. v. Incorporated Town of Ryan, 32 Okla. 738, 124 P. 19; San Francisco Gas Co. v. Brickwedel, 62 Cal. 641; McBean v. City of Fresno, 112 Cal. 159, 53 Am. St. 191, 44 P. 358, 31 L. R. A. 794; Gulf Paving Co. v. City of Atlanta, 149 Ga. 114, 99 S.E. 374; Smith v. Broderick, 107 Cal. 644, 48 Am. St. 167, 40 P. 1033.)

There is no so-called "injustice" in the fact that defendant does not pay the claim of plaintiff, as it is illegal; and plaintiff also had full knowledge that it was unenforceable at all times. It was its duty not to pay it. ( Salt Creek v. King Iron Co., 51 Kan. 520, 33 P. 303; City of Plattsmouth v. Murphy, 74 Neb. 749, 105 N.W. 293; Arnott v. City of Spokane, 6 Wash. 442, 33 P. 1063; Gutta-Percha v. Village of Ogalalla, 40 Neb. 775, 42 Am. St. 696, 59 N.W. 513.)

There was no lack of knowledge on the part of plaintiff that defendant lacked power to incur the liability, and it was charged with both actual and constructive or imputed knowledge. (28 Cyc. 1335, n. 81-83, 1388; McQuillin on Munic. Corp. 2810; Powers v. Boise City, 22 Idaho 286, 125 P. 194; Sims v. Frankfort, 79 Ind. 446.)

There was no ratification, estoppel or implied contract and could be none involved in the facts shown in this case. ( Zottman v. San Francisco, 20 Cal. 96, 81 Am. Dec. 96; School Dist. v. Twin Falls etc., 30 Idaho 400, 164 P. 1174; McNutt v. Lemhi County, 12 Idaho 63, 84 P. 1054; McQuillin on Munic. Corp., sec. 1164; Smith on Munic. Corp., secs. 660, 745; Noel v. San Antonio, 11 Tex. Civ. 580, 35 S.W. 263; Salt Creek Tp. v. King Iron etc. Co., supra; City of Plattsmouth v. Murphy, supra; City of Litchfield v. Ballou, 114 U.S. 190, 5 S.Ct. 820; Marion Sav. Bank v. Dunkin, 54 Ala. 471; Mullins v. Kansas City, 268 Mo. 444, 188 S.W. 193; City of Laporte v. Gamewell etc. Co., 114 Ind. 466, 58 Am. St. 359, 45 N.E. 588, 35 L. R. A. 686; Miller v. Lewiston-Clarkston Co., 35 Idaho 669, 209 P. 194; McDonald v. Mayor, etc., 68 N.Y. 23.)

No recovery can be had upon quantum meruit, it being simply an implied promise; and the prohibitions of the constitution and statute extending to a liability upon quantum meruit as well as upon express contract. (Dickinson v. City of Poughkeepsie, 75 N.Y. 65; Niles Water Works v. City of Niles, 59 Mich. 311, 26 N.W. 525; M'Brian v. City of Grand Rapids, 56 Mich. 95, 22 N.W. 206; Hampton v. Commissioners Logan Co., 4 Idaho 646, 43 P. 324; Edison Elec. Co. v. City of Pasadena, 178 F. 425, 102 C. C. A. 407; Reams v. Cooley, 171 Cal. 150, Ann. Cas. 1917A, 1260, 152 P. 293; 19 R. C. L., Munic. Corp., secs. 352, 360; Goose R. Bank v. Willowlake S. Tp., 1 N.D. 26, 44 N.W. 1002; Superior Mfg. Co. v. School Dist., 28 Okla. 293, 114 P. 328.)

MCCARTHY, J. Dunn, William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

MCCARTHY, J.

Three causes of action are set forth in the amended complaint upon which this action is based. In the first cause of action appellant bases his right to recover upon contract and alleges that appellant, respondent and the Whitebird Highway District are duly organized highway districts; that appellant highway district is bounded on the north by respondent highway district, and on the east by Salmon River, which is the western boundary of the Whitebird Highway District, and also the eastern boundary of respondent highway district, and the Whitebird Highway District is located and adjacent to both appellant and respondent districts and on the opposite side of Salmon River; that in June, 1918, and for some time prior thereto, and some months thereafter appellant, respondent and the Whitebird Highway District were confined to the use of privately owned toll ferries as a means of crossing Salmon River and this was the only manner in which residents of appellant and respondent districts were able to reach the railroad, transact their business at the county seat, and market their livestock and produce. Appellant then alleges the natural conditions surrounding Salmon River in this vicinity, the instalation of toll ferries and the danger occasioned by their use during the high-water season. The passage of three bills at different sessions of the legislature to construct a bridge in this vicinity and their veto by the Governors in office is also alleged. It is then alleged that appellant, respondent and the Whitebird Highway District entered into a contract for the construction of a bridge across said river, at a point at and near the mouth of Whitebird Creek from the east side in said Whitebird Highway District to a point opposite in said respondent district; and that it was agreed the expense of the construction of such bridge should be borne equally by appellant, respondent, and the Whitebird Highway District; that respondent solicited and requested appellant to carry on said work and pay respondent's share of the cost and expense of material, work and labor in the construction of said bridge and agreed to pay appellant all sums expended by it for respondent in order to pay and discharge its one-third of the cost; that after the bridge was constructed the Whitebird Highway District paid its one-third of the cost of construction and appellant paid two-thirds, covering its own proportion and respondent's, the latter being $ 7,588; that no part of this has been paid and it is due and owing from respondent to appellant.

In the second cause of action appellant seeks to recover, upon quantum meruit, the reasonable value of one-third of the cost of construction of the bridge.

The third cause of action is based upon the promise of respondent to pay one-third the cost of construction and the resultant damage occasioned appellant upon its failure to comply with its promise.

General and special demurrers were filed to each cause of action and to the complaint as a whole. The court sustained the demurrer upon the ground that the said complaint does not state facts sufficient to constitute a cause of action. Upon appellant's refusal to...