Gilbert v. Canyon County

• Decision Date: 27 March 1908
• Citation: 14 Idaho 437,94 P. 1029
• Parties: FRANK G. GILBERT et al., Appellants, v. CANYON COUNTY et al., Respondents
• Court: Idaho Supreme Court

94 P. 1029

14 Idaho 437

FRANK G. GILBERT et al., Appellants, v. CANYON COUNTY et al., Respondents

Supreme Court of Idaho

March 27, 1908

BOARD OF COUNTY COMMISSIONERS-REGULAR AND ADJOURNED SESSIONS-WHAT ARE-REPEALING STATUTE-FINDINGS OF THE BOARD OF COUNTY COMMISSIONERS-CONTRACT FOR BRIDGE-VOTING BONDS.

1. Rev Stat., secs. 1755, 1756 and 1758, provide for regular and adjourned meetings of the board of county commissioners.

2. The time for holding regular meetings of the board is fixed by law. (Rev. Stat., sec. 1755.)

3. When the board meets in regular session, the law contemplates that it will proceed to transact the public business with reasonable dispatch, but the law does not fix or limit the time during which or over which it may adjourn or take a recess.

4. The duration or time of a recess or adjournment should be governed wholly by the exigencies of the case and the public welfare.

5. An adjourned meeting of the board is a meeting to be provided for while the board is in session, by a proper order, said meeting to be held after the close of the regular session.

6. In the absence of the board closing the regular session by an adjournment sine die, the law does not close such session the law fixes no particular time when the board shall adjourn when in regular session, but its session will close by an adjournment sine die, by the opening of another session under the law, or by failure to meet under a recess adjournment.

7. The fact that the regular session of the board is adjourned from day to day, or to a future date fixed in the order of adjournment, at which a particular business is specified to be transacted in connection with or as general business, does not terminate the regular session or constitute the meeting thus to be held an adjourned meeting within the meaning of sec. 1756, Rev. Stat., or terminate the jurisdiction of the board as of the regular session.

8. Where it clearly appears by an order of adjournment that the regular business of the board has not been completed, and that the same will be considered at a future date, fixed by an order of adjournment, and there is no adjournment sine die, and the session has not terminated by the opening of another session, such adjournment will be construed as a recess adjournment and a continuation of the regular session.

9. Sec 1762, Rev. Stat., was specifically repealed by an act approved February 21, 1905 (Laws of 1905, p. 75).

10. Since the repeal of sec. 1762, Rev. Stat., no petition is necessary in order to confer jurisdiction upon the board of county commissioners to construct a bridge, as sec. 3604 Rev. Stat., amended by acts approved February 7, 1899, and March 14, 1899 (Laws of 1899, pp. 136, 443), authorize the board of county commissioners, whenever the interests of the county require it and the board deems it for the public good, to bond the county for the construction or repair of a bridge, when the indebtedness to be thereby created exceeds the income or revenue of the county for that year, provided that such bonds be first authorized by a vote of two-thirds of the qualified electors of the county voting at such election.

11. To authorize the issuance of municipal coupon bonds for the construction of a bridge, the board of county commissioners should find, and the record should show, a substantial compliance with each step required by the statute, to be taken before said bonds are issued.

12. The fact that the board of commissioners submitted to the qualified electors of the county the question of issuing bonds to cover the costs of superintending the construction of a bridge, as well as the contract price for the bridge, does not render such bonds void.

13. The board of commissioners are authorized to issue bonds when voted by the electors qualified to vote at such election, to cover the costs and expense of superintending the construction of a bridge, as the work of superintending is as much a part of the construction as furnishing material, or the performance of labor in connection therewith.

(Syllabus by the court.)

APPEAL from the District Court of Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.

An action to restrain the board of county commissioners from issuing and selling negotiable bonds for the construction of a bridge. Judgment for respondent. Affirmed.

Judgment of the trial court affirmed. Costs awarded to respondents.

J. J. Guheen, Attorney General, Owen M. Van Duyn, Prosecuting Attorney of Canyon County, and Smith & Scatterday, for Respondents.

John F. McLane, and W. A. Stone, for Appellants.

STEWART, J. Sullivan, J., concurs, Ailshie, C. J., concurs in part.

OPINION

STEWART, J.

A rehearing was granted in this case and the cause reargued. From a further consideration of the questions involved, we are now satisfied that the court was in error in its original opinion in holding that the order made by the board of county commissioners on October 17, 1906, as follows: "On motion the board adjourned until November 1, 1906, for the purpose of allowing claims for courthouse construction and any other regular business which the board may choose to take up," constituted said meeting of November 1, 1906, an adjourned meeting, under sec. 1756, Rev. Stat.

It is first contended by appellant that the board of commissioners of Canyon county was without jurisdiction to issue and sell the bonds here in question, and that an injunction should have been granted. The facts shown in this connection are these: The first day of October (1906) term of the commissioners was the 8th day of October. On that day the board convened and took certain proceedings not here material and adjourned to the 9th; then to the 10th; then to the 11th. On the 11th the petition for the bridge was acted upon and the board approved the same, ordered notices for bids to be published, returnable on November 21st, and approved the plans submitted by the surveyor. Then an adjournment was taken to the 12th; then to the 13th; then to the 15th; then to the 16th, and then to the 17th. On the 17th, the following order was entered of record: "On motion the board adjourned until November 1, 1906, for the purpose of allowing claims for courthouse construction and any other regular business which the board may choose to take up." On November 1st an adjournment was taken to the 21st without any purpose for the adjournment being stated, and on the 21st the bridge contract was let and the bond election was ordered. Thereupon the board adjourned to the 22d; then to December 3d; then to December 13, "for the purpose of transacting any business that may properly come before them at that time," and on the 13th they adjourned until January 3, 1907. On the last-named date, the election was canvassed, and the board adjourned sine die.

Summarizing these facts it appears that the board remained in session from day to day, evidently transacting ordinary business, until October 17th. On that day they adjourned for two weeks (until November 1st). All the vital bond proceedings were taken after this adjournment.

On the foregoing facts, the question presented is: Did the adjournment of October 17th terminate the regular session of the board and constitute the subsequent sessions "adjourned meetings," as provided for in sec. 1756, Rev. Stat., and if so, were the subsequent proceedings of the board coram non judice? The complaint alleges and the answer admits, that no order stating the purposes of adjournment, other than those hereinbefore set forth, was made or entered of record, and that no notice of the meeting of November 1, 1906, was posted. The answer to this question is to be found in the statutes and the construction to be given to them. The statutes are as follows:

"The regular meetings of the board of commissioners must be held at their respective county seats on the second Mondays in January, April, July and October of each year, and must continue from time to time until all business before them is disposed of. Such other meetings must be held to canvass election returns, equalize taxation and other purposes as are prescribed by law or provided for by the board." (Sec. 1755, Rev. Stat.)

"Adjourned meetings may be provided for, fixed and held for the transaction of business by an order, duly entered of record, in which must be specified the character of business to be transacted at such meetings, and none other than that specified must be transacted." (Sec. 1756, Rev. Stat.)

"If at any time after the adjournment of the regular meeting, the business of the county requires a meeting of the board a special meeting may be ordered by a majority of the board.

"The order must be entered of record, and a five days' notice thereof must, by the clerk, be given to each member not joining in the order. The order must specify the business to be transacted, and none other than that specified must be transacted at such special meeting." (Sec. 1757, Rev. Stat.)

"All meetings of the board must be public. . . . The clerk of the board must give five days' public notice of all special or adjourned meetings, stating the business to be transacted, by posting three notices in conspicuous places, one of which shall be at the courthouse door." (Sec. 1758, Rev. Stat.)

The statute thus provides for three different kinds of meetings of the board of county commissioners, to wit, regular, adjourned and special.

The statute does not limit the duration of the regular sessions of the board; the law does, however, contemplate that when the board meets in regular session, it will proceed to transact the public business with such reasonable dispatch as the welfare of the public may demand. The statute does not fix or limit the time during which the...