Green v. Okanogan County

• Citation: 111 P. 226,60 Wash. 309
• Parties: GREEN v. OKANOGAN COUNTY et al.
• Decision Date: 12 October 1910
• Court: United States State Supreme Court of Washington

111 P. 226

60 Wash. 309

GREEN v. OKANOGAN COUNTY et al.

Supreme Court of Washington

October 12, 1910

Department 1. Appeal from Superior Court, Okanogan County; E. W. Taylor Judge.

Action by James H. Green against Okanogan County and others for injunction. From a judgment of dismissal, plaintiff appeals. Reversed and remanded, with instructions.

Alvin W. Barry, for appellant.

William C. Brown, Roberts, Battle, Hulbert &amp Tennant, and P. D. Smith, for respondents.

FULLERTON, J.

The board of county commissioners of Okanogan county entered into a contract with the Puget Sound Bridge & Dredging Company and Charles, Ostenberg for the construction of a bridge across the Okanogan river for a stated consideration to be paid in part from moneys belonging to Okanogan county and in part from moneys subscribed for that purpose and turned over to the county by citizens of Okanogan City, a town situated on the Okanogan river at the point where it was proposed to construct the bridge. After the contract had been let, the present action was begun to enjoin its execution the plaintiff, appellant here, making parties defendant thereto all of the principals to the contract, including the members of the board of county commissioners as individuals. The contract was attacked on the ground that the commissioners had not complied with the requirements of the statute in its execution. The trial judge held against the contention of the plaintiffs, and entered a judgment dismissing the action. This appeal was taken therefrom.

The respondents moved to dismiss the appeal on the ground that there has been a cessation of the controversy. It appears from affidavits filed subsequent to the perfection of the appeal that the board of county commissioners executed the contract after the dismissal of the action in the court below, and it is contended that now there is nothing upon which the injunction can operate, as the acts of the defendants sought to be enjoined have been fully performed. But this contention mistakes the power of the court. It is true that when pending an appeal from the judgment of the lower court, and without any fault on the part of the respondent, an event occurs which renders it impossible to enter a judgment in favor of the appellant which will give any effectual relief, the court will not proceed to a formal judgment, but will dismiss the appeal, and it is held also that the same result will follow if the intervening event is owing to some voluntary act of the appellant. But no such result follows merely because the respondent has changed the status of the subject-matter in litigation. So in this case if it appears that the contract entered into was subject to be enjoined because in violation of the statutes, the court may now inquire into the subsequent acts of the respondents, and compel them to undo what they have wrongfully done in so far as it is capable of undoing, and to answer in damages for anything that cannot be undone. This principle was announced in the early case from this court of Hartson v. Dale, 9 Wash. 379, 37 P. 475. There an action was begun to enjoin a county treasurer from paying a county warrant which had been unlawfully issued. The relief was denied in the court below, and, pending the appeal, the warrant was paid by its treasurer. This fact was shown to this court, and a motion to dismiss the appeal on that ground was made. But the court denied the motion, reversed the judgment of the court below, and sent the case back for further proceedings. But, while this case was correctly decided, it is probable that a wrong reason was given in support of the conclusion of the court. The decision was rested on the ground that it would be highly inequitable to allow any subsequent action of the respondent to have the effect of subjecting the appellant to the costs of a meritorious appeal, while the decision ought to have been rested on the ground we have before indicated, namely, that the court had power to enter an effectual decree by compelling the parties to undo what they had wrongfuly done, or compel them to answer in damages therefor. In Farnsworth v. Wilbur, 49 Wash. 416, 95 P. 642, it was held that the court in an action equitable cognizance had power to issue mandatory as well as prohibitory injunctions, and could in virtue of its powers compel the undoing of those acts which have been illegally done, in that case to compel the vacation of an illegal transaction in which a judgment had been satisfied and discharged of record in consideration of a payment less than the whole. In Mills v. Green, 159 U.S. 651, 16 S.Ct. 132, 40 L.Ed. 293, the court used this language: 'If a defendant, indeed, after notice of the filing of a bill in equity for an injunction to restrain the building of a house, or of a railroad, or of any other structure, persists in completing the building, the court nevertheless is not deprived of the authority, whenever in its opinion justice requires it, to deal with the rights of the parties as they stood at the commencement of the suit, and to compel the defendant to undo what he has wrongfully done since that time, or to answer in damages.' See, also, Tucker v. Howard, 128 Mass. 361; Pennsylvania Co. v. Bond, 99 Ill.App. 535; Tate v. Field, 56 N. J. Eq. 35, 37 A. 440. The fact that no temporary injunction has been granted does not affect the kind or the extent of the remedy to which the plaintiff is entitled upon establishing his right at the hearing on the merits. Tucker v. Howard, supra. The motion to dismiss will be denied.

Passing to the merits of the controversy, it remains to inquire whether or not there was a compliance with the statutes in the letting of the contract. That portion of the Okanogan river from its mouth to a point above the site of the bridge is navigable, being capable of floating water craft of considerable dimensions. In 1891 the Legislature of this state passed an act relating to the construction of bridges across navigable streams by boards of county commissioners the material part of which is found in section 5680 of the Code (Rem. & Bal.), which reads as follows: 'Whenever the county commissioners of any county or counties desire to erect a bridge on any public highway across a navigable stream, under the provisions of this act, said board or boards shall cause to be published a notice in a newspaper of general circulation in the county or counties, if such there be; and if there be no newspaper published in the county or counties, then by posting three notices, one in the locality of the place to be bridged, and two in the most public places in the county or counties; such notice shall contain the name of the stream to be bridged and the exact point where such bridge is to be erected, and the date when the said board will determine the public necessity for the building of said bridge: Provided, that when such bridge is to be built by two counties, the notice shall be published in both counties. At the time fixed in such notice the board of county commissioners shall declare such public necessity by an order of record, which said order shall, in addition to the other facts, prescribe the width of the draw to be made, if any draw shall be considered necessary in such bridge, and also the length of span necessary to permit the free flow of water: Provided, that such bridges shall be so constructed as not to interfere with, impede, or obstruct the navigation of such streams.' There is no pretense that the commissioners in letting the contract for the construction of this bridge complied or attempted to comply with the provision of this statute. The commissioners seek to excuse themselves, however, by asserting that the statute is no longer in force; it having been superseded, it is contended, both by subsequent state legislation and by congressional enactments on the same subject. The state legislation referred to is the act of March 9, 1893 (Laws 1893, p. 147), and the act of March 16, 1903 (Laws 1903, p. 223). The first of these acts, while it relates to the construction, repair, and improvement of public highways generally, contains no specific provision relating to contracts for the construction of bridges over navigable streams, nor does it purport to cover within itself the entire law on the subject-matter of which it treats. For example, it contains no provision relating to obtaining a right of way for public highways, or the construction of highways lying in two or more counties, or the construction or repair of bridges across streams which form the boundary line between two counties, or the manner of letting of contracts for the construction of bridges generally. These were matters perhaps that would fall within the title and spirit of the act, but, since the act contains no provision relating to them, the act cannot be said to have been a complete act on the subject of roads and bridges; and consequently, since there is no direct conflict between the acts, there can be no implied repeal of the one by the other. The second act cited is more to the point, as it does contain a specific provision with relation to the construction of bridges. But there is nevertheless no conflict between the acts. The act thought to be superseded, it will be noticed, relates chiefly to the preliminary steps to be taken before any attempt is made to let the contract for the construction of the bridge, while the latter relates solely to the letting of the contract. It provides that bridge construction of which the estimated cost is more than $150, except in cases of emergency, shall be let by contract by the county commissioners on plans and specifications previously prepared, etc. The later act, therefore, but supplements the earlier one, and cannot under any...