Dolezal v. Bostick, Co.

• Decision Date: 28 February 1914
• Docket Number: Case Number: 2998
• Citation: 139 P. 964,41 Okla. 743,1914 OK 82
• Parties: DOLEZAL, County Clerk, et al. v. BOSTICK, Co. Atty.
• Court: Oklahoma Supreme Court

1914 OK 82

139 P. 964

41 Okla. 743

DOLEZAL, County Clerk, et al. v. BOSTICK, Co. Atty.

Case Number: 2998

Supreme Court of Oklahoma

Decided: February 28, 1914

Syllabus

¶0 1. COUNTIES- -Proceedings of County Board. Where the law prescribes the mode which boards of county commissioners must pursue in the exercise of their powers, it, as a rule, excludes all other modes of procedure.

2. BRIDGES-- Contracts--Validity--Counties. Under section 4, art. 1, c. 29, Sess. Laws 1903, advertisement and opportunity for competitive bids were essential to a contract under which a county was authorized to pay for the construction of bridges; and any agreement between the board of county commissioners and a bidder for the construction of bridges without such advertisement and opportunity for competitive bids, and in willful violation of the provisions of such section, was fraudulent and void.

3. SAME--Alteration of Contract--Validity--Counties. A valid contract for bridges, according to properly specified plans and specifications, under section 4, c. 29, Sess. Laws 1903, could not, without readvertisement and statutory opportunity for competitive bids, be thereafter changed, by agreement between the board of county commissioners and the accepted and contract bidder purporting to substitute other plans and specifications for those specified in the contract, so that the bridges may contain less and lighter material, and be of less value and first cost for the sole benefit of such bidder; and such agreement for such substitution is fraudulent and void.

4. INJUNCTION--Subjects of Relief--Issuance of County Warrant. A county clerk may be enjoined from issuing a warrant for payment of a claim allowed by the board of county commissioners for the construction of bridges under a void contract between such board and the claimant.

5. SAME--Parties--Counties. Section 1649, St. Okla. 1893 (section 1500, Rev. Laws 1910), requires all suits by a county to be in the name of its board of county commissioners, except where officers are authorized by law to sue in their official names for the benefit of the county.

6. SAME. A county attorney is not authorized to sue in his official name to enjoin the issuance of warrants as compensation for the construction of bridges under a void and fraudulent contract.

7. SAME-- Expenditure of Funds--Parties. A county of the territory of Oklahoma was a subdivision thereof for public and political purposes, and such territory had sufficient interest to enable it to maintain suits to enjoin the officers of its counties from violation of trusts committed to their hands.

8. SAME. A county attorney, prior to statehood, was authorized to sue in the name of the territory of Oklahoma to enjoin the county clerk of his county from the issuance of warrants for the misapplication of county funds.

9. APPEAL AND ERROR--Review--Amendments Regarded as Made--Parties. Where a county attorney, as such, has sued for the benefit of the territory of Oklahoma to prevent the misapplication of county funds by its officers, without naming such territory as the plaintiff, where the cause of action, the issues made by the pleadings, the scope of the evidence for each of the parties, and the issues made thereby, and the relief given by the court, are clearly what they would have been if the suit had been in name, as it was in fact, by said territory, on the relation of such county attorney, and where no substantial right of the adverse party is affected to his prejudice, the petition will be treated as if here amended in the name of the proper party plaintiff.

10. VESTED RIGHTS--Harmless Error. Under the statutes of the territory of Oklahoma there was no such thing as a vested right in a harmless technical error, or defect in the pleadings and parties to an action.

11. APPEAL AND ERROR--Harmless Error--Parties. Under section 4018, St. Okla. 1893 (section 4791, Rev. Laws 1910), this court must disregard every error or defect which does not affect the substantial rights of the adverse party.

ON REHEARING.

12. BRIDGES--Retroactive Laws-- Reconstruction and Repair. Under section 52, art. 5 (section 142, Williams'), Constitution of Oklahoma, a cause of action to enjoin issuance of county warrant upon claim theretofore allowed by the board of county commissioners in payment for bridges built in places of county bridges recently, in respect to time new bridges were built, destroyed by floods on principal streams of a county, without advertisement or opportunity for competitive bids, as required by section 4, art. 1, c. 29, Sess. Laws 1903, where suit thereon had been commenced, is not affected by a subsequently enacted statute (section 1, art. 4, c. 32, Sess. Laws 1909), providing that "the board of county commissioners of any county in this state is hereby authorized to pay for the reconstruction or repairing of such county bridges as have been heretofore damaged or destroyed by floods, and including bridges where the same by reason of an emergency have been repaired or reconstructed by any person or persons without first having contracted to repair or reconstruct the same with said county commissioners: Provided, the authority granted by this section shall apply only to claims for repairing or reconstructing bridges previously owned by the county on the same site."

Error from District Court, Noble County; W. M. Bowles, Judge.

Action by Charles R. Bostick, County Attorney of Noble County, against Joseph E. Dolezal, County Clerk of said county, and Henry Freygang and A. A. Trocon, a copartnership doing business in the name of the Midland Bridge Company, for injunction. Temporary injunction made permanent, and defendants bring error. Affirmed.

Harris & Nowlin and Kenneth C. Crain, for plaintiffs in error

Charles R. Bostick, for defendant in error

THACKER, C.

¶1 Plaintiffs in error will be designated as defendants and defendant in error as plaintiff, in accord with their respective titles in the trial court.

¶2 On August 17, 1906, after due advertisement and upon the lowest of nine bids received, the board of county commissioners of Noble county entered into a valid and binding contract in conformity with the provisions of section 4, art. 1, c. 29, Sess. Laws 1903, the same being section 7861, Comp. Laws 1909 (Rev. Laws 1910, sec. 7441), with the Midland Bridge Company, one of the defendants, whereby this defendant undertook to construct three bridges across principal streams in Noble county, in accord with plans and specifications prepared by the county surveyor as required by said section 4, and then on file in the office of the county clerk of said county, at an agreed price of $ 7,995; but on about September 3, 1906, without advertising, or any manner of attempt to comply with the provisions of said section 4, and in the absence of other bidders, the defendant bridge company and the board of county commissioners agreed to substitute other and different plans and specifications prepared and proposed by defendant for those of the said contract of August 17, 1906, whereby the material to be used in the bridges was to be less and lighter, and in effect the value and first cost of the bridges were to be reduced, without any reduction in the price to be paid therefor by the county, of which price the county was to pay 50 per cent. on delivery of metal, 25 per cent. on delivery of lumber, and 25 per cent. on completion of bridge.

¶3 It is contended in effect by defendants that, after the contract of August 17, 1906, the defendant bridge company discovered it was short on material called for in the plans and specifications of the contract, and that the said substitution of other plans and specifications for a bridge, with less and lighter material, was made because there was a pressing demand and need for the speedy completion of these bridges, which could be best met by such substitution, without explanation of omission of corresponding reduction in the price to be paid by the county; but, in deference to the judgment of the trial court, we must assume that the substitution of plans and specifications was not in fact, nor intended to be, for the benefit of Noble county, and was solely for the convenience and benefit of this defendant.

¶4 On September 14, 1906, the commissioners and the bridge company, without any attempt to comply with any provision of said section 4, and without any meeting of said board, entered into an agreement, purporting to be a contract, whereby the company was to construct three additional bridges across principal streams of said county in accord with the plans and specifications for the smallest and least expensive of the bridges called for by the plans and specifications of the former contract, at an agreed price of $ 3,800, of which the county was to pay 50 per cent. when the metal was delivered, 25 per cent. when the lumber was delivered, and 25 per cent. when the bridges were completed; and it is claimed by defendants that these three additional bridges replaced three bridges immediately theretofore destroyed by floods, so that an emergency existed which required that the parties dispense with the delay and formalities of compliance with said section 4; but, without indicating that an emergency agreement would be upheld as a contract in the face of the statute, in deference to the judgment of the trial court, we must assume that no emergency existed. The six bridges were actually constructed by the bridge company; but they were not in any instance constructed as required by the original plans and specifications; and the differences between the bridges for which the contract of August 17, 1906, and the agreement of September 14, 1906, called for and the bridges actually constructed were as follows: First, as to the three bridges called for by the contract of August 17, 1906: A bridge which should have been 140 feet long, with tubes 30 feet long and 36 inches in diameter, with truss 9 feet high on main span and 6...