Engstad v. Dinnie

• Decision Date: 04 June 1898
• Docket Number: 6731
• Citation: 76 N.W. 292,8 N.D. 1
• Court: North Dakota Supreme Court

76 N.W. 292

8 N.D. 1

J. E. ENGSTAD, et al. v. JOHN DINNIE, et al

No. 6731

Supreme Court of North Dakota

June 4, 1898

Appeal from District Court, Grand Forks County; Fisk, J.

Action by J. E. Engstad, Burke Corbet, J. H. Bosard, M. Reilly James Lankin and O. E. Nash, residents and taxpayers of the City of Grand Forks, North Dakota, against John Dinnie mayor; Frank A. Brown, auditor, and M. L. Gorden, treasurer of the City of Grand Forks, to enjoin the carrying out of a contract for the construction and equipment of an electric light plant, and to enjoin the issuance and payment of the warrants of said city to the contractors for said improvement. From a judgment dismissing the action plaintiffs appeal.

Reversed.

Judgment reversed, and a new judgment entered in favor of the plaintiffs.

Cochrane & Feetham, for appellants.

It is averred in the complaint and admitted by the answer that the city was indebted beyond the statutory limit when this contract was made, and the contractors were bound to know this fact. City v. Gamewell, 45 N.E. 591; Treadway v. Schnauber, 1 Dak. 227; Farmers' etc. Bank v. School District, 6 Dak. 255; State v. Getchell, 3 N.D. 243; McCoy v. Brant, 53 Cal. 247; Doon Township v. Cummins, 12 S.Ct. 223; County v. Dickson, 6 S.Ct. 901. The allegation of defendants that the contract was partially performed was impertinent. Part performance can not be urged in defense to an ultra vires contract either by way of ratification or estoppel. Norton v. County, 6 S.Ct. 1131; Marsh v. Fulton County, 10 Wall. 676; County v. Dickinson, 6 S.Ct. 897; Kelly v. Town, 8 S.Ct. 1101; State v. Getchell, 3 N.D. 243; Capital Bank v. School District, 1 N.D. 479. The effect of the constitutional inhibition (Sec. 183 Const., § 2148 Rev. Codes) is to require the city to carry on its operations while so indebted upon a cash system, that is payment must be provided for by levy made as distinguished from levy to be laid. Spilman v. City, 14 S.E. 283, 2 Beach Pub. Corp. § 622 n. The making of the contracts created a liability within the meaning of the inhibition. Sackett v. City, 88 Ind. 476; City v. Edwards, 84 Ill. 626; Tennant v. Crocker, 48 N.W. 579; Spilman v. City, 14 S.E. 279; City v. Gamewell, 45 N.E. 590. The debt limit having been reached the city could contract no liability not provided for in the annual tax levy without a vote. § § 2492, 2262 Rev. Codes; 2 Beach Pub. Corp. 810; French v. City, 42 Ia. 617; Hebard v. Ashland, 12 N.W. 437; Book v. Earl, 87 Mo. 246, 254; Francis v. Howard Co., 50 F. 44; Prince v. City, 21 N.E. 768; Gould v. City, 4 S.W. 650; German Am. Sav. Bank v. City, 49 P. 542; Shannon v. City, 69 N.W. 598; City v. Gamewell, 45 N.E. 590. No provision for this expenditure was made in the annual appropriation bill, and no tax levy made as required by statute. § § 2263, 2262, 2190, 2264, Rev. Codes; Shattuck v. Smith, 6 N.D. 56; Donovan v. City, 33 N.Y. 290; Tennant v. Crocker, 48 N.W. 577; Bladen v. Philadelphia, 60 Pa. 464. Defendants as officers of the city cannot urge an estoppel against their own violation of duty and express law. Bank v. School Twp., 1 N.D. 96; 2 Pom. Eq. § 813; Tube Works v. City, 5 Dak. 54.

Bangs & Guthrie, for respondents.

The complainants have by their delay suffered other parties to incur expense and to enter into contracts and engagements of a burdensome character, this laches will preclude them in obtaining equitable relief. 2 Story Eq. § 959; Herman on Estoppel § 1221; Tash v. Adams, 10 Cush. 252. Laches is a bar to relief in equity. Smith v. Thompson, 54 Am. Dec. 126; Bausman v. Kelley, 38 Minn. 197; Kellogg v. Ely, 15 Ohio St. 64; Wiggin v. Mayor, 9 Paige 24. The Court will refuse an injunction, because of the unnecessary delay of the parties seeking it, if the expense of constructing the work complained of has been incurred. Hartness v. Mad River, 6 Ohio St. 137; Collins v. City, 12 Green (N. J.) 293; Chamberlain v. Town, 14 At. Rep. 865; City v. Alexandria, 12 Pet 93; Attorney General v. Ry. Co., 9 Green 49; Ellis v. Karl, 7 Neb. 381; Royal Bank v. Ry. Co., 150 Mass. 490; Bigelow v. Los Angeles, 85 Cal. 614; Osborn v. Ry. Co., 37 Fed Rep. 830; East St. Louis v. Ry. Co., 98 Ill. 415. The making of the contracts for construction of power house did not create an indebtedness against the city. A debt is a specified sum of money which is due from one person to another and denotes not only an obligation of a debtor to pay, but also the right of the creditor to receive and enforce the payment. City v. Hames, 112 Ind. 323; French v. Burlington, 42 Ia. 514; Grant v. Davenport, 36 Ia. 396; Quill v. Indianapolis, 124 Ind. 292; Spillman v. Parkersburg, 35 W.Va. 613; Burlington v. Woodard, 49 Ia. 58; Crowder v. Town, 128 Ind. 496; Wood v. Partridge, 11 Mass. 487; Dively v. City, 27 Ia. 227; Valpariso v. Gardner, 97 Ind. 1; State v. McCauley, 15 Cal. 430; Smith v. Dedham, 144 Mass. 177; Ithica Water Wks. Co. v. Ithica, 31 Hun. 426; 38 Am. Rep. 97.

OPINION

WALLIN, J.

This action was brought by resident taxpayers of the City of Grand Forks to enjoin said city, and its officers, who are made defendants, from completing the erection of a certain brick building, and placing therein certain machinery, and paying for the same out of the city treasury, which building and machinery are intended to be used, when completed and furnished, as an electric light plant to be owned and operated by said city. The action was tried without a jury, and resulted in the entry of a judgment in the District Court dismissing the action, with costs against the plaintiffs. The abstract of the record filed in this Court is voluminous, and the plaintiffs' attorneys have assigned a formidable array of errors in their brief, but for the purpose of disposing of the case we have not found it necessary to pass upon any question which is not directly related to the power of the city council to contract for the electric light plant, and pay for the same out of the general fund of the city. No claim is made that the fund to pay for the plant is to be derived from any special fund arising upon the sale of bonds; on the contrary, the contention of counsel for the respondents is that the building and machinery can and will be paid for out of the general fund of the city.

To develop the pivotal question in the case it will be necessary to mention only certain facts disclosed by the record, and with respect to which there is no controversy between counsel. It is conceded that the City of Grand Forks, through its officers, and pursuant to certain bids which had been previously made in response to proposals for bids made in behalf of the city, did, on the 26th day of January, 1898, enter into certain contracts in writing as follows: One of said contracts was made by and between the City of Grand Forks and James Dinnie, whereby it was agreed that said Dinnie, for a consideration of $ 2,665, to be paid by the city, should erect and build a brick building for the city in accordance with plans as stated in said contract, the said building to be used as a part of an electric light plant to be owned and operated by said city. The other of said written contracts was made and entered into between the City of Grand Forks and the firm of W. F. Grey & Co., and whereby said firm, in consideration of the sum of $ 12,703, agreed to be paid by the city, undertook to furnish and place in said brick building a dynamo and certain machinery and appliances, as stipulated by the contract, the same to constitute a part of said electric light plant. It is conceded that prior to the commencement of this action said contracting parties, viz. James Dinnie and said firm of W. F. Grey & Co., had respectively entered upon the performance of their contracts, and had performed a part thereof, and the city had allowed a claim or bill presented on account of said contract with Dinnie, and issued and delivered to said Dinnie a city warrant therefor for the sum of $ 1,168.16; and the city had also issued and delivered to said firm of Grey & Co., on account of material furnished under said contract, a city warrant for $ 130. The right of the City of Grand Forks, which is organized under Chapter 28 of the Political Code, to enter into the contracts we have mentioned, is broadly challenged by the plaintiffs' counsel. It is conceded that among the powers expressly conferred upon the city is that of providing for the lighting of the city. Rev. Codes, § 2148. The contention is that the city in attempting to exercise this power has wholly failed to conform to plain charter requirements, which are made prerequisites to its exercise, and without which the said contracts could not lawfully be entered into, or the plant be lawfully paid for out of the general fund of the city, or at all. In a nutshell, the claim is made in behalf of the plaintiffs that no sum or amount whatever was ever lawfully levied or lawfully appropriated by the city council to meet and defray, out of the general fund, the large expense necessarily included in the erection and furnishing of an improvement within the city such as that contemplated by the contracts we have mentioned; and consequently that the city has prematurely and without authority of law entered upon the enterprise of providing light for the city by the erection of the building and equipping the same as stated in said contracts.

We remark first, although the point was not made by counsel that we question whether, under said charter, it would be lawful either for the city to levy or appropriate funds to build and equip an electric light plant to be owned and operated by the city, until such plant had been authorized by some ordinance passed and adopted for that purpose, and which should make provision for maintaining and...