Gum Ridge Drainage Dist. v. Clark

• Decision Date: 31 January 1921
• Docket Number: 21120
• Citation: 124 Miss. 382,86 So. 859
• Parties: GUM RIDE DRAINAGE DIST. v. CLARK & PARKER
• Court: Mississippi Supreme Court

86 So. 859

124 Miss. 382

GUM RIDE DRAINAGE DIST. v. CLARK & PARKER

No. 21120

Supreme Court of Mississippi

January 31, 1921

1. DRAINS. Prior to statute commissioners had no power to reassess for additional work not included in estimate.

Prior to the enactment of chapter 199, Laws 1912 (Hemingway's Code, section 4290), the commissioners of a drainage district organized under section 1683 et seq., Code 1906 (Hemingway's Code, section 4264 et seq.), who underestimated the extent and cost of the work proposed to be done in the district when apportioning the same among the landowners, and thereafter contracted for the performance of such additional work as they may have deemed necessary to carry out the needs of the district, were without power to reassess the land in the district for the payment of such additional work.

2 DRAINS. Commissioners held to have no authority to pay increased cost caused by change in plans after apportionment of cost.

The commissioners of drainage districts organized under section 1683 et seq., Code 1906 (Hemingway's Code, section 4264 et seq.), who, after apportioning the estimated cost of the work to be done among the landowners, and entering into a contract for the performance thereof, changed the plans and specifications of the proposed work so as to materially increase the extent and cost thereof for the reason that the work originally proposed to be done would not, in the judgment of the commissioners, meet the requirements of the district, and have agreed to pay the contractors for such additional work, are not authorized by chapter 199, Laws 1912 (Hemingway's Code, section 4290), to reassess the land in the district for the payment thereof.

3 DRAINS. Contract for additional work must be made in manner provided by law to authorize reassessment.

The contract which chapter 199, Laws 1912 (Hemingway's Code section 4290), requires drainage commissioners to make for work to be done in the district in addition to that included in the estimate thereof, which was passed on by the landowners when the cost thereof was apportioned among them in order that the commissioners may be authorized by that statute to reassess the land in the district for the payment of such additional work, must have been made in the manner provided by law.

HON. R. W. CUTRER, Chancellor.

APPEAL from chancery court of Jefferson county, HON. R. W. CUTRER, Chancellor.

Suit by Clark & Parker against the Gum Ridge Drainage District. Decree for complainants, and defendant appeals. Reversed, and bill dismissed.

Decree reversed, and bill dismissed.

Truly &amp Truly, and Alonzo C. Heckler, for appellants.

It must be manifest that to permit additional compensation to be awarded contractors, as was attempted in this case, would place the financial affairs at the individual disposal of the commission. The bald repetition of the facts in this case is sufficient to condemn the claim of the contractors. A complete system of canals and levees is contemplated and is decided on, the engineer employed, plan and specifications prepared, the estimated cost, the consent of the landowners, are all made matters of public record. Betterments and benefits of the landowners apportioned and assessed by the commissioners; the maximum is fixed and bonds issued for the largest amount permitted by the statute the landowners are duly notified and all those matters vital to their financial interest are made matters of public record. After the bonds are duly sold, advertisement is made as required by law, and the work awarded to the lowest bidder. After the contract is awarded and properly executed by all parties, after the contractor enters upon the work, the commissioners, without publicity of any kind, without notice to the private citizen, without the approval of the chancery court, changed the entire system of canals and levees, increased the same according to their own private judgments, and attempted to increase the indebtedness which is to be placed upon the land of their constituents (the private landowners of the district) by more than fifty per cent of the maximum permitted by law. We assert that no such arrangement will be permitted to stand; otherwise it would be possible for a corrupt and designing board of commissioners, or for a corrupt and designing engineer, to give a favored contractor many advantages by a contract secretly entered into which he could not enjoy if the contract were let after public advertisement as required by law.

The fact that the commissioners ratified the work performed, or that the engineer gave a final certificate showing the amount of work which had been performed, imposed no liability on the district, and certainly none on the landowners who are the "innocent bystanders" in this transaction and who alone bear the brunt of the loss. The powers of the commissioners are prescribed by statute and they cannot by their acts and conduct enlarge those powers. This same question has been before our own and many other courts and to facilitate research by this court we cite and quote from the leading cases.

The case of Badger v. Inlet Drainage District, 141 Ill. 540, 31. N.E. 70, is exactly like the present case upon the facts and the law applicable thereto. See, also, People v. Scanlan, 107 N.E. 149, where drainage commissioners in violation of the statute incur indebtedness in advance of the assessment of benefits, the courts hold the contracts illegal. Winkleman v. Moredock and Ivy Landing Drainage Dist., 48 N.E. 715, (Illinois); Vandalia Leree & Dr. Dist. v. Hutchins, 84 N.E. 715; Cherry v. Bowman, 152 S.W. 133 (Arkansas); Heidelberg v. St. Francois County, 12 S.W. 914 (Missouri); Thibault v. McHaney, 117 S.W. 877 (Arkansas).

So far as the bill of complaint in this case relies upon ratification of the void contract and acceptance of the work by the commissioners, it is conclusively shown to be without foundation by the decision of this court in the case of Jefferson County v. Arrighi, 54 Miss. 668.

Equally without support in the law is the right of complainants in this case to sue upon a quantum meruit for work and labor performed. It is well settled that one cannot sue on a special contract and recover upon a quantum meruit. We shall content ourselves with a citation of authorities upon this point. Yandell v. Madison County, 32 So. 918; Boyce v. Timpe, 89 N.W. 83; Hunt v. Tuttle, 101 N.W. 509; Wade v. Nelson, 95 S.W. 956; Manning v. School District, 102 N.W. 356; Davis v. Drew, 111 S.W. 869; Arlington Hotel Company v. Ewing, 138 S.W. 954.

It is also well settled that a county or other public corporation will not be liable on an implied contract where an express contract is contemplated by statute. 7 Am. & Eng. Encyc. Law (2 Ed.), 946; 11 Cyc., pages 468, 469, 474, 476; Grotton Bridge & Mfg. Co. v. Warren County, 31 So. 711; Wollcot v. Lawrence County, 26 Mo. 272; Michael v. City of Atoka, 185 P. 96; Donovan v. Mayor, etc., of New York, 33 New York, 291; Gregg v. Town of Anchorage, 216 S.W. 348; Buchanan Bridge Co. v. Campbell, 54 N.E. 372; Turney v. Town of Bridgeport, 12 A. 520; Moody v. Terrell-Hedges Co., 78 So. 639.

Nor is the district estopped by receiving the benefits of the labor, material or improvements. See Phillips v. Butler Co., 86 S.W. 231; Schuinn v. Seymour, 24 N.J.Eq. 143; Monoghan v. Vanatta, 122 N.W. 610.

First, that chapter 199, Acts of 1912, was prospective in its application and the legislature did not intend to give it retrospective effect. Leve Commissioners v. Royal Insurance Company. 96 Miss. 832; Alden v. City of New Ark., 36 N. J. L. 299; Whedom v. Forham, 38 Conn. 409; Dewart v. Purdy, 29 Penn. 113; Northern Drainage District v. Bolivar Co., 111 Miss. 250.

Second. That if it be attempted to give chapter 199 a retrospective effect, then it would render the chapter itself unconstitutional because it is beyond the power of the legislature to pass retrospective laws affecting private rights. Third. In the third place, chapter 199 cannot be made to apply to the instant case because of its own requirements.

We submit, therefore, that the demurrer to the bill of complaint should have been sustained.

Engle & Laub, for appellee.

In view of the fact that it was admitted and established the appellees were awarded a contract under competitive bidding and after compliance with all legal requirements, and that in pursuance of this contract they did all the work required by the specifications furnished them and their work was accepted by the appellants, the learned chancellor had no alternative but to find in favor of the appellees.

Certainly the appellees are entitled to pay for the work which they did in carrying out the specifications furnished them by the engineer of the drainage board and in accordance with their contract Exhibit A and at the price stated in said contract. We see no escape from this conclusion and in truth there is no escape.

It was not up to appellees to take care of the finances of the drainage board. Appellees had a right to expect the drainage board to be in a position to pay for all the work called for under the specifications and in the contract.

The law imposes no duty or obligation upon the contractor to see that the drainage board can finance its contracts. Good business judgment however might make some assurance on this point advisable but there rests on the contractor no legal obligation to take care of the finances of the drainage board.

As far as the legal rights of appellees to recover payment for their work is concerned the contract Exhibit B was not necessary. By that contract appellees simply undertook to assist appellants in financing the work they had properly, legally and duly let. Certainly appellees cannot be prejudiced in...