Geer-Melkus Const. Co. v. Hall County Museum Bd.

• Citation: 185 N.W.2d 671,186 Neb. 615
• Decision Date: 02 April 1971
• Docket Number: GEER-MELKUS,No. 37556,37556
• Parties: CONSTRUCTION COMPANY, Inc., a Corporation, Appellee, v. HALL COUNTY MUSEUM BOARD, Appellee, County of Hall, State of Nebraska, Intervener-Appellant.
• Court: Nebraska Supreme Court

Page 671

185 N.W.2d 671

186 Neb. 615

GEER-MELKUS CONSTRUCTION COMPANY, Inc., a Corporation, Appellee, v. HALL COUNTY MUSEUM BOARD, Appellee, County of Hall, State of Nebraska, Intervener-Appellant.

No. 37556.

Supreme Court of Nebraska.

April 2, 1971.

Syllabus by the Court

1. Anyone having an interest in the result of pending litigation may intervene as a matter of right.

2. The interest required as a prerequisite of intervention is a direct and legal interest of such character that the intervener will lose or gain by the direct operation and legal effect of the judgment which may be rendered in the action.

3. It is the practice of courts of equity, when they have once obtained jurisdiction of a case, to administer all the relief which the nature of the case and the facts demand, and to bring such relief down to the close of the litigation between the parties.

4. Voters at an election are entitled to such information as will enable them to consider, weigh, discuss, and vote upon the actual merits of a proposition. If unfounded facts are set out which obscure the issues or mislead the voters on material questions of fact, the election will be held to be null and void.

Cunningham & Blackburn, Robert E. Paulick, Grand Island, for intervener-appellant.

Prince, Lauritsen & Baker, Walter P. Lauritsen, Grand Island, for Geer-Melkus Constr. Co.

Cronin & Shamberg, Grand Island, for Hall County Museum Bd.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

SPENCER, Justice.

This action was originally filed by Geer-Melkus Construction Company, Inc., hereinafter referred to as Melkus, against Hall County Museum Board, hereinafter referred to as Museum, praying for judgment for a balance due on construction costs. Museum answered, demanding that Melkus be put on strict proof and requesting the court to make a determination and declare the powers granted to it under section 51--506, R.R.S.1943, and specifically to determine whether or not tax revenue may be expended for museum construction purposes.

The County of Hall, hereinafter referred to as County, sought to intervene in the action. This right was denied but County was subsequently granted the right to intervene on the matter of the enforcement of the judgment entered in favor of Melkus. us. Judgment was entered for $217,698.54. Thereafter County filed an answer, contesting the right of Museum to use tax funds for construction purposes. After a hearing the trial court dismissed the petition in intervention and held Museum was required to pay the judgment from its tax revenue. County has appealed.

The proceeding to establish Museum was initiated by a letter from Leo B. Stuhr to the board of supervisors of Hall County, hereinafter referred to as County Board suggesting that he felt a great need for the establishment of an historical museum in the county and that he was sure a great majority of the citizens of County shared his view and would contribute to the erection and establishment of such a museum, and that an adequate museum building in his opinion could be constructed for a sum around $100,000. He thereupon offered to donate approximately 35 acres of land and $25,000, provided there should be pledged by public subscription a sum of at least $100,000 for the erection of the building, and that the voters of Hall County should vote to establish a county museum. The County Board accepted Stuhr's offer by the following resolution dated September 2, 1960, which, so far as material herein, provides: 'The Hall County Board of Supervisors, in regular session assembled at the Courthouse in Grand Island, Hall County, Nebraska, this 2nd day of September, 1960, adopted the following:

'WHEREAS, by letter under date of June 20, 1960, Leo B. Stuhr did offer to the County of Hall, State of Nebraska, a tract of land of about 35 acres being a part of the farm known as Stuhr Farm and did offer the sum of $25,000.00 cash, provided the residents of Hall County, voluntarily by public subscription, pledge and provide $75,000.00, said land to be used as a site for a historical museum or pioneer settlement and said money to be used for erection of a museum building thereon,

'AND WHEREAS, according to Section 51--501 to 51--512, inclusive, Revised Statutes of Nebraska, 1943, 1959 Cumulative Supplement, the law requires before establishing such county museum or levying tax for the maintenance of said museum, that the County Board submit the question to the voters of Hall County and must receive authorization for a levy by a majority of the voters voting at said election,

'NOW, THEREFORE, BE IT RESOLVED that the County Clerk of Hall County, Nebraska, place on the ballot to be voted on by the voters of the County of Hall at the general election, November 8, 1960, the question of establishing a Hall County Museum to be constructed by public subscriptions and to levy a tax for the maintenance of said museum thereafter.'

This proposition was submitted to the voters in the following language: 'To establish a Hall County, Nebraska Museum To be constructed by public donated funds and to levy a tax for the maintenance of said museum thereafter.' (Italics supplied.)

The proposition as submitted was approved proved by the voters, and County Board appointed a Museum Board, hereinafter referred to as Board. Leo B. Stuhr was appointed as one of the members and served as its president until his death. Stuhr, who died in 1961, left the bulk of his estate of approximately $700,000 to Museum. S. N. Wolbach has been the president of Board since May 1961. After May 1961 Board hired a director and established him in an office in Grand Island. Subsequently, Board employed a New York architect to draw the plans for a museum to cost not to exceed $500,000. When bids were received on the plans submitted, they ranged from a low of $941,000 to a high of $1,700,000. All bids were rejected.

Melkus, who was a local contractor, submitted the low bid. After the bids were rejected, Board asked the architect to meet with Melkus to see how the plans could be changed to reduce the construction cost to $600,000. The architect submitted a revised figure of $668,000, and Board agreed on a working figure of $670,000, and decided to let the contract in phases to Melkus without taking new bids. The record would indicate that the total construction cost was $760,000, exclusive of the cost of land, architect fees, landscaping, road, parkways, or dirt moving. The museum was not constructed on the Stuhr land, but was constructed on other land purchased through the Grand Island Industrial Corporation for $70,000. The Stuhr land was sold for $118,000. After construction, Melkus claimed a balance due of $189,172.87 on the construction contract. This amount, plus interest, is the basis of the judgment entered in the amount of $217,698.54.

The questions we consider herein are: The right of the County to intervene; whether or not Museum was validly established; and if so, whether or not the mill levy may be used to pay construction costs.

On the question of the right to intervene, we have consistently interpreted section 25--328, R.R.S.1943, to provide that anyone having an interest in the result of pending litigation may intervene as a matter of right. Gilbert v. First National Bank, 154 Neb. 404, 48 N.W.2d 401. The interest required as a prerequisite of intervention is a direct and legal interest of such character that the intervener will lose or gain by the direct operation and legal effect of the judgment which may be rendered in the action. Noble v. City of Lincoln, 158 Neb. 457, 63 N.W.2d 475.

While the question as to the use of funds by Museum would purportedly be settled by the court's judgment, the question of the availability of tax funds for the satisfaction of the Melkus judgment is in the hands of the County Board and would require further litigation. The following from Best & Co., Inc. v. City of Omaha, 149 Neb. 868, 33 N.W.2d 150, is pertinent herein: 'The applicable principle of law is expressed in First Trust Co. v. Airedale Ranch & Cattle Co., 136 Neb. 521, 542, 286 N.W. 766, 777, quoting from Madison Avenue Baptist Church v. Baptist Church in Oliver Street, 73 N.Y. 82, 95: 'It is the practice of courts of equity, when they have once obtained jurisdiction of a case, to administer all the relief which the nature of the case and the facts demand, and to bring such relief down to the close of the litigation between the parties."

When Museum filed its answer to the action of Melkus, it prayed that: '* * * the Court herein make a determination and declare the powers granted to the Museum Board of Hall County, Nebraska,...