Dunn v. Sharp

• Decision Date: 21 February 1894
• Citation: 35 P. 842,4 Idaho 98
• Parties: DUNN v. SHARP, STATE WAGON ROAD COMMISSIONER
• Court: Idaho Supreme Court

35 P. 842

4 Idaho 98

DUNN v. SHARP, STATE WAGON ROAD COMMISSIONER

Supreme Court of Idaho

February 21, 1894

WRIT OF REVIEW-PERSON BENEFICIALLY INTERESTED MAY DEMAND.-A citizen and taxpayer beneficially interested in the orders and proceedings of a board created by law, or in the doings of a public officer, has the right to bring a proper suit to determine whether such board or officer has performed his duties as the law requires.

STATE WAGON ROAD COMMISSION-WHEN AUTHORIZED TO LET CONTRACTS.-The state wagon road commission has no authority to let the contract for the construction of a section of said road until the survey of the same has been completed according to law.

SAME-HOW COMMISSION GETS ITS POWER.-The said board exists only by authority of the statute, and has no power or authority except that given it by the statute. In the performance of its duties it must be governed by the law prescribing and directing the method of its work.

(Syllabus by the court.)

An original proceeding by writ of review.

Costs awarded to petitioner.

W. B Heyburn, for Petitioner.

Where a statute directs certain things to be done preliminary to the expenditure of public money, such as the letting of contract for state road for which any person desiring to do so might be enabled to make an intelligent bid, and thus secure to the state the benefit of intelligent competition for the contract, a taxpayer may bring certiorari to prevent the illegal expenditure of public money. (State v. Jersey City, 54 N. J. L. 437, 24 A. 571.) Courts now generally recognize the right of a taxpayer to maintain an action to prevent ultra vires acts of public board. (Read v Atlantic City, 49 N. J. L. 558, 9 A. 759; Handy v City of New Orleans, 39 La. Ann. 107, 1 So. 593; Conery v. New Orleans W. W., 39 La. Ann. 770, 2 So 555; Crampton v. Zabriskie, 101 U.S. 607; Beach on Public Corporations, secs. 625, 631; Doan v. Board of Commrs., 3 Idaho 38, 26 P. 167.) It is not necessary that the relator should have a special interest in the matter, or that he should be a public officer. (Moses on Mandamus, 197; Hammilton v. State, 3 Ind. 452; People v. Collins, 19 Wend. 56; Commissioners of Pike Co. v. State, 11 Ill. 202.) The proceedings under a statute to create a highway should be so definite and certain that a competent surveyor could with the record before him point out its location. (Warren v. Brown, 31 Neb 8, 47 N.W. 633.) Strict compliance with the statute is a jurisdictional necessity in laying out a road under a statute. (Ruhland v. Hazel Green, 55 Wis. 664, 13 N.W. 877; Williams v. Holmes, 2 Wis. 129; Austin v. Allen, 6 Wis. 134; Bobb v. Carver, 7 Wis. 124; Roerborn v. Schmidt, 16 Wis. *519; Isham v. Smith, 21 Wis. 32; State v. Langer, 29 Wis. 68; Damp v. Town of Done, 29 Wis. 419; State v. Castle, 44 Wis. 670.) All contracts made by a municipal corporation (or board of commissioners) must conform to the mode prescribed in the charter for making such contract. (Beach on Public Corporations, sec. 542; Zottman v. San Francisco, 20 Cal. 98, 81 Am. Dec. 96, and note.) Statutes authorizing special acts and conferring special powers must be strictly followed. (Starford v. Worn, 27 Cal. 172; Atkins v. Kinnan, 20 Wend. 241, 32 Am. Dec. 534; Sharp v. Johnson, 4 Hill, 92, 40 Am. Dec. 259.) The acts of the state wagon road commission in letting Payne contract were void and beyond the jurisdiction of the board and certiorari lies. (Burnett v. Drain Commrs., 56 Mich. 374, 23 N.W. 50; Bixby v. Goss, 54 Mich. 551, 20 N.W. 581; Null v. Zierle, 52 Mich. 540, 18 N.W. 348.)

George M. Parsons, Attorney General, and James H. Hawley, for State Wagon Road Commissioners.

No brief filed.

Plaintiff is an owner of real estate, both improved and unimproved, in the town of Wallace, state of Idaho and resides in said town is a taxpayer upon said property. He is also one of the owners of a certain mining property and a quartz-mill near Pierce City, in Shoshone county, Idaho. He has been operating the same for the last year, and expects to operate them in the future. Defendants are the state wagon road commissioners, appointed and organized under and by virtue of the act of the legislature of the state of Idaho approved February 16, 1893. (2d Sess. Laws, p. 23.) After the organization of the said board, one George R. Trask, a competent engineer, was employed to make survey of a section of said state wagon road, running from the town of Wallace, in Shoshone county, to the mouth of the St. Mary's river, on the St. Joseph's river. The said engineer proceeded to survey said road. Commencing at the town of Wallace, he surveyed and staked the line of the said road from the said town of Wallace to a point on the St. Joseph river, twenty to twenty-five miles above the mouth of the St. Mary's river. So much of the survey was completed on or before the July, 1893, meeting of the state board of commissioners. At this meeting said Trask made report to the said board of his said survey. No plot of the road so surveyed was ever made out or placed on file with the board of commissioners, and no specifications or profile of the amount so surveyed was ever made. Differences having arisen between the said engineer, Trask, and the commissioners, the engineer handed in his resignation. The survey not having been finished, no profile of the portion so surveyed was ever placed on file. The board of state road commissioners then employed one White to make survey from said town of Wallace to the mouth of the St. Mary's river. The latter, commencing at a point on the St. Joseph river opposite the mouth of the St. Mary's river, surveyed the line of said road along the north bank of the St. Joseph river a distance of about eleven miles, leaving, of said White survey, twenty or twenty-five miles yet to be made, to connect the same with the town of Wallace, and of the Trask survey about twenty-five miles unsurveyed, to connect the same with the mouth of the St. Mary's river. At this juncture the said board of commissioners advertised for proposals for the construction of the different sections of said road throughout the state. In reply to this advertisement one William H. Payne filed proposal to construct the said state road from a point on the Mullen road in Shoshone county to the mouth of the St. Mary's river for the sum of $ 16,850, which said bid was accepted by the said board of state road commissioners, and a contract entered into by and between the said William H. Payne of the first part, and the state wagon road commissioners, party of the second part, for the construction of a portion of said road described as follows: "The point of beginning being at a point on the county road known as the 'Mullen Road,' between the east and west forks of Pine creek, in Kingston precinct, Shoshone county, Idaho; thence up and along the main branch of Pine creek to the divide between the head waters of Pine creek and Falls creek; thence over said divide to the northwest of headwaters of said Falls creek to the divide of Montan Doon creek; thence down and along said creek to the southeast corner of Montan Doon ranch, on the north side of the St. Joseph river, at the mouth of the St. Mary's river. The said Payne further agreeing to perform and complete said work on or before the twentieth day of September, 1894. . . . The said party of the first part further covenants and agrees to and with the said party of the...