Durland v. Prickett

• Decision Date: 02 January 1935
• Docket Number: 7299.
• Parties: DURLAND v. PRICKETT ET AL.
• Court: Montana Supreme Court

39 P.2d 652

98 Mont. 399

DURLAND v. PRICKETT ET AL.

No. 7299.

Supreme Court of Montana

January 2, 1935

Appeal from District Court, Yellowstone County; Robert C. Stong Judge.

Action by C. E. Durland against O. B. Prickett and others. From a judgment dismissing the complaint as to certain counts plaintiff appeals.

Affirmed.

ANGSTMAN J., dissenting in part.

H. C. Crippen and H. C. Crippen, Jr., both of Billings, for appellant.

John G. Brown, L. V. Ketter and John C. Erickson, all of Helena, for respondents.

ANDERSON Justice.

Plaintiff, the duly elected, qualified and acting surveyor of Yellowstone county, brought this action against two members of the board of county commissioners and their bondsmen, to recover damages claimed to have been sustained as a result of the defendant commissioners hiring other surveyors to perform services which, it is alleged, were a part of the lawful duties of the plaintiff.

The complaint is in six counts. A general demurrer, challenging the sufficiency of each count, was filed. The trial court sustained the demurrer to the first, fifth, and sixth counts, and overruled it as to the other counts. A judgment of dismissal was entered, dismissing the complaint as to the counts against which the demurrer was sustained. The appeal is from this judgment. Error is assigned upon the ruling of the court on the demurrers, and upon the entry of the judgment of dismissal.

In each of the causes of action plaintiff alleged his election and qualification as county surveyor, the election and qualification of the county commissioners as such, and the execution of their official bonds by the defendant bonding companies.

In his first cause of action plaintiff alleges that the defendants Prickett and Cardwell, acting in their official capacities as a board of county commissioners, on May 19, 1932, adopted the following resolution: "Resolution in re: Rimrock Road. The County Surveyor being considered by the Board incompetent, the Board hereby appoints and orders without cost to Yellowstone County, R. T. Hurdle, City Engineer of the City of Billings, Montana, to make a survey of the proposed route and to plat the same and to file his field notes with the County Clerk and Recorder of Yellowstone County, Montana. O. B. Prickett, F. T. Woods, B. E. Cardwell."

Previously a petition had been filed in compliance with the provisions of chapter 127, Revised Codes of 1921 (section 1635 et seq.), for the establishment of the road described in the resolution.

It is further alleged that the surveying and platting of roads and highways is within the intent and purview of the above chapter, and that the surveying of the road described in the resolution is one of the duties of the county surveyor, for which he was entitled to compensation at $7 per day, as provided by law. It is then alleged that the commissioners, in appointing the surveyor mentioned in the resolution, unlawfully, maliciously, fraudulently, and corruptly schemed and contrived to injure the plaintiff and to deprive him of the emoluments of his office by appointing the named engineer, and by refusing to appoint the plaintiff to survey and plat the road; that the statement contained in the resolution, to the effect that the board considered the plaintiff incompetent, was untrue; that the defendant commissioners knew the statement to be untrue at the time they voted on the resolution, and that plaintiff was capable and competent to perform the duties of his office. It is then alleged that the action of the commissioners was unlawful and without the scope and authority of the board of county commissioners, and was arbitrary, capricious, and malicious; that the appointed surveyor expended the reasonable time of sixty-five days in surveying and platting the road; and that, by reason of the matters and things set forth in the complaint, plaintiff was damaged in the sum of $455.

The fifth cause of action alleges that the defendant commissioners in their official capacities adopted a resolution, as a board of county commissioners, on February 17, 1933, for the establishment of a drain ditch, the establishment of which was declared in the resolution "to be necessary for the protection of the public highways of Yellowstone county, Montana, and that the construction of such drain ditch will result in a saving in the road funds of said county." It is alleged that the construction of this ditch entailed making surveys and establishing grades, and that this work was a lawful duty of the plaintiff for which he was entitled to compensation at the rate of $7 per day. It is then alleged that the defendant commissioners directed two other surveyors to make surveys and establish the grades for the drainage ditch; that one of the surveyors consumed the reasonable time of 83 3/4 days in this work, and that thereby plaintiff was damaged in the sum of $586.25. The conduct of the defendant commissioners is described by the same adjectives, and the same conclusions are alleged and set forth as in the first cause of action.

The sixth cause of action relates to the employment by the board of commissioners of an engineer to check and make plans and specifications for a bridge. The board on March 6, 1933, passed a resolution wherein it was written, after a description of the bridge, as follows: "Whereas, it has been found by the Board of County Commissioners of Yellowstone County that the County Surveyor of Yellowstone County has been insubordinate to the wishes of the Board of County Commissioners and they do not believe he is a competent bridge builder, therefore, be it resolved by the Board of County Commissioners that the County Surveyor be declared incompetent to perform the work above mentioned and that Parker Hastings, of Billings, Montana, be employed to check and make plans and specifications for the Board. Done this 6th day of March, 1933."

It is alleged that the board paid Hastings, the engineer employed to do the work, the sum of $252, and, as in the first cause of action, that the conduct of the commissioners was wrongful; that the plaintiff was competent, and that he was damaged in the amount paid to Hastings.

Proceeding now to the consideration of the sufficiency of plaintiff's first cause of action: Section 1639, Rev. Codes 1921, provides: "If the petition is for the opening of a highway, and the board grants the prayer of said petition and orders the same opened, they shall proceed at once to have the same opened to the public and declare it to be a public highway; and the board may order the county surveyor, or if the county surveyor is incompetent, some other competent surveyor designated by the board to survey the same and plat it and file his field notes with the county clerk and recorder, for which the surveyor shall receive seven dollars per day and actual traveling expenses."

Plaintiff contends that, under this section, where it is sought to establish a road, if the board of commissioners order the survey of a road declared open to the public, it is their duty to order the county surveyor to make the survey, and that no other surveyor may be employed, assuming that the county surveyor is competent, as he is alleged to be in the complaint. It is urged that the word "may" means "must."

In the case of Montana Ore Purchasing Co, v. Lindsay, 25 Mont. 24, 63 P. 715, 716, this court had under consideration the meaning of the word "may" as used in a statute there under consideration. Therein it was said: "This word is sometimes permissive only; sometimes it is imperative. Legislative intent determines whether it is directory or mandatory. According to its natural and usual signification, the word 'may' is enabling and permissive only, and so it must be interpreted where no right of or benefit to the public, nor right of persons other than the one upon whom the permission is conferred, depends upon giving to it the obligatory meaning; but the word is interpreted to mean 'shall' or 'must' whenever the rights of the public or of third persons depend upon the exercise of the power or performance of the duty to which it refers. In those cases where the public or persons possess the right to require that the power conferred by the word 'may' be exercised, the word is imperative and mandatory, being the equivalent of 'shall' or 'must.' "

It is unreasonable to suppose that the Legislature intended that upon the opening of every road, a survey should be ordered. The manifest purpose of a survey in a situation of this character is to definitely locate and describe the road, and to prepare a plat for the files and records of the proper county offices. If the road is accurately described in the petition seeking its creation, if its location and boundaries are definitely marked, and if a sufficient plat accompanies the petition, it would appear to be idle for the...