Erskine v. Steele County

• Citation: 87 F. 630
• Parties: ERSKINE et al. v. STEELE COUNTY.
• Decision Date: 28 May 1898
• Court: United States District Courts. 8th Circuit. United States District Court of North Dakota

87 F. 630

ERSKINE et al. v. STEELE COUNTY.

United States Circuit Court, D. North Dakota, Southeastern Division.

May 28, 1898

Newman & Spaulding, for plaintiffs.

F. W Ames and George Murray, for defendant.

AMIDON District Judge.

This action is submitted to the court without a jury upon an agreed statement of facts, which may be summarized as follows: The defendant, Steele county, was organized on the 23d day of June, 1883, out of territory which had been previously embraced in the counties of Traill and Griggs. Thereafter its board of commissioners employed one E. J McMahon to transcribe the records in the offices of the registers of deeds of the old counties affecting the title to real property situated in the new. The work was prepared by him pursuant to the contract, and on the 19th day of November, 1883, the defendants board of commissioners audited and allowed his claim at the sum of $2,010, and caused a county warrant to be issued to him for the amount of $2,680 the excess over the amount of the claim being for the purpose of making good the discount at which the warrants of the county were selling at that time. McMahon transferred the warrant to Massena B. Erskine, who thereafter brought an action upon it against the county, in which he recovered a judgment in the trial court, but the supreme court of the state, on appeal, reversed this judgment, and directed the lower court to dismiss the complaint, with costs. Judgment was entered accordingly in the trial court, and that portion of it relating to costs was paid by the plaintiffs, who had been substituted in the action upon the death of the original plaintiff. The decision of the supreme court was based wholly upon the following grounds: First, that, at the time the contract was made with McMahon, the county commissioners had no power or authority, under the law, to make the same; and second, that they had no power or authority to issue any warrant for a greater sum than the amount that was agreed to be paid for the serviced rendered. This decision will be found in 4 N.D. 339, 60 N.W. 1052. In the course of the opinion the court uses the following language:

'Whether the transcription made by McMahon would or would not possess any legal validity as notice or otherwise is unnecessary to decide in this case; but to say the least, there is grave reason to doubt the legal value of such transcribed records.'

This decision was rendered in November, 1894. For the apparent purpose of meeting the objections thus raised, at the next session of the legislature of the state, which convened in January, 1895, an act was passed which provided as follows:

'When a new county is organized in whole or in part from an organized county, or from territory attached to such organized county for judicial purposes, it shall be the duty of the commissioners of such new county to cause to be transcribed in the proper books all the records of deeds, or other instruments relating to real estate in such new county, and all the contracts instruments relating to real estate in such new county, and all the contracts heretofore made by any board of county commissioners for the transcribing of any such records are hereby made valid; and all records transcribed thereunder, or under the provisions of this act, shall have the same effect in all respects as original records, and any person authorized by such boards of county commissioners to transcribe such records shall have free access at all reasonable times to such original records for the purpose of transcribing the same. ' Acts 1895, p. 43.

Thereafter the plaintiffs obtained an assignment from McMahon of his claim against the county for transcribing the records, and this action is brought to enforce its payment. Several objections to plaintiff's right of recovery are urged in the brief of defendant, but it seems necessary to consider only the following in this opinion: (1) That the act of 1895 is unconstitutional for the reason that it is an exercise of judicial power; (2) That it is unconstitutional because it deprives the county of its property without due process of law; (3) that it violates section 185 of the constitution of North Dakota, which forbids the state or any county * * * to make donations to, or in aid of, any individual, association, or corporation; (4) that this action is barred by the judgment in the former action.

A examination of the statutes of the territory of Dakota shows that newly-organized counties were usually empowered to have the records affecting real property embraced within their limits transcribed. Steele county is the only exception found. The maintenance of such a system of records is certainly one of the usual duties of this class of corporations, and is a public, as distinguished from what is sometimes spoken of as a private, function. From this it follows that the legislature could retroactively legalize the contract, unless such action would be an infringement of the constitution. The act of a municipality, done without authority previously conferred, may be confirmed and legalized by subsequent legislative enactment, when legislation of that character is not prohibited by the constitution, and when that which was done would have been legal had it been done under legislative sanction previously given. Supervisors v. Brogden, 112 U.S. 261, 5 Sup.Ct. 125; Bolles v. Brimfield, 120 U.S. 760, 7 Sup.Ct. 736; Springfield Safe-deposit & Trust Co. v. City of Attica, 29 C.C.A. 214, 85 F. 387. The objection that the act in question was judicial legislation wholly misconceives the nature of the act. The legislature did not declare the contract valid which the court had adjudged invalid, but made it invalid by imparting to it the legislative sanction which the court had declared was the only element wanting to its validity. The act did not construe, but completed, the imperfect contract which the county had made. Seizing upon the duty that, in good conscience, rested upon the county to pay for the service which it had received, the legislature, by virtue of its authority over the municipality as a public agency of the state, ratified its act, and thereby changed its moral duty into a legal obligation. Its act was formative, not judicial. The want of power in a municipal corporation to enter into a contract is usually disclosed for the first time by an adverse decision in the courts, and, if it should be held that such a decision precludes the legislature from curing the defect, retroactive legislation would be defeated in those cases in which it has heretofore been most frequently used, and in which it has its highest justification. Such is not the law.

The leading authority upon this subject is Town of Guilford v. Cornell, 18 Barb. 615, 13 N.Y. 143. In that case Cornell and Clark, as commissioners of highways, prosecuted an action on behalf of the town by direction of the town meeting, and, having been defeated, were compelled to pay $657.22 as costs of the litigation. They presented a claim for that amount to the town board, which was rejected, and thereupon they brought suit for its recovery. They succeeded before the referee, but the court set aside the judgment, and dismissed the complaint, with costs, upon the sole ground that there was no authority in law for the prosecution of the original action in which the costs accrued, and this decision was affirmed on appeal by the court for the correction of errors. The legislature thereupon passed a law legalizing the claim, and directing the levy of a tax upon the town for its payment. The case above referred to, reported in 18 Barb. 615, 13 N.Y. 143, was brought by the town to restrain the imposition of this tax, and one of the main contentions in support of the action was that the act legalizing the claim was void as judicial legislation. See 18 Barb. 623, 629, 641. The court held this position unsound, the writer of the opinion saying:

'I am unable to see in what respect this act comes in conflict with any power which the judiciary has exercised or which it deems itself authorized to exercise. The equity of the claim of Cornell and Clark was not considered by the court, and for the reason that the question presented was one of strict law, depending entirely upon whether authority to sue had been conferred upon them by statute, and the court held that it was not; and here its functions ended. The judgment of the curt has not been interfered with or their jurisdiction assumed; all that has been done is to afford relief where the could, if they would, could not.'

This decision is cited and approved in Wrought-Iron Bridge Co v. Town of Attica, 119 N.Y. 204, 23 N.E. 542. In that case the plaintiff had constructed a bridge for the defendant. Its claim for payment of the contract price having been rejected, suit was brought. Plaintiff obtained a verdict, but, upon motion for a new trial, the judge presiding at the circuit set aside the verdict, holding 'that the contract with the plaintiff for the construction of the new bridge was without authority; that all the proceedings were unauthorized and ineffectual to bind the town; and that the plaintiff could not recover. ' Nothing was done to review this judgment but the plaintiff had recourse to the legislature for relief. An act was passed by which the proceedings of the town were legalized and the contract made binding upon it. After the passage of this act a new action was brought by the plaintiff, which was resisted upon the ground 'that the legislature had no power to legalize and validate a claim against the town which had already been declared invalid by the judicial tribunals. ' Upon a review of the authorities, the court of appeals declared this position untenable, and sustained a judgment in favor...