Hillside Securities Company v. Minter
| Decision Date | 14 August 1923 |
| Parties | HILLSIDE SECURITIES COMPANY v. JOHN B. MINTER, ROBERT LEE FERRILL, ZARIUS B. HUNTINGTON, EARL DENNY, LAURA CAMPBELL and TOPEKA BRIDGE & CONSTRUCTION COMPANY, Appellants |
| Court | Missouri Supreme Court |
Appeal from Clay Circuit Court. -- Hon. Ralph Hughes, Judge.
Affirmed.
D. R Hite, Theodore Emerson, Claude Coppinger, James S. Simrall and Claude Hardwicke for appellants.
(1) Neither the contract involved nor the performance thereof was malum prohibitum, or required doing any act the law expressly prohibited or made void; and the contract, if it had been entered into in conformity with the statutes, would have been valid and binding on both parties thereto; and the bridges were constructed and the county took possession of them under the contract. Such being the case, it was the duty of the county to pay for the bridges, and it could not be enjoined from complying with such duty; and even if the contract had been malum prohibitum, payment of warrants issued for the bridges could not properly have been enjoined without restoration to the contractor of possession of the bridges. R. S. 1919, secs. 10733, 10734, 10735; State Board of Agriculture v. Railroad, 47 Ind. 407; Chapman v Douglas County, 107 U.S. 355; Green v. Okanogan County, 111 P. 226; Sparks v. Jasper County, 213 Mo. 237; Seaman v. Levee District, 219 Mo. 29; Roeder v. Robertson, 202 Mo. 522; Simpson v Stoddard County, 173 Mo. 466. (2) The bridge company had a statutory right to recover for the bridges constructed; so the county court had a right to pay for them. R. S. 1919, sec. 9507; Bryson v. Johnson, 100 Mo. 76. (3) The county court had a right to buy and pay for the bridges as they were constructed, even if there had been no contract for their construction. R. S. 1919, sec. 2574. (4) No threatened damage, or invasion of its rights, against which plaintiff was entitled to an injunction, was shown by the evidence. On the contrary, it was shown that there was no such damage. So the injunction should have been denied. Rollins v. Latham, 134 Mo. 472; Green v. Okanogan County, 111 P. 226. (3) If plaintiff ever had right to equitable relief, it was lost by delay in asserting such right. Great Western Ry. v. Oxford, 3 De Gex M. & G. 359; Tasch v. Adams, 10 Cush, 252; Brown v. Messick, 18 Neb. 355; Kellog v. Eby, 15 Ohio St. 67; Prettyman v. Tazwell County, 19 Ill. 406; Reisner v. Strong, 24 Kan. 297; Meistrell v. County Commrs., 76 Kan. 319. (6) The injunction, if permanent, may cause great inconvenience to the people of Clay County, and plaintiff could have lost but little if anything, if it had been denied; so it should have been denied. 22 Cyc. 784, 785.
Lathrop, Morrow, Fox & Moore, Martin E. Lawson and Lawson & Hale for respondent.
(1) The contract between the county and the bridge company, not being entered into in the mode and manner prescribed by statute, is wholly illegal and void. Mo. Constitution, art. 4, sec. 48; R. S. 1919, sec. 10734; 9 Corpus Juris, 439; 15 Corpus Juris, 542-3; Wolcott v. Lawrence County, 26 Mo. 272; Heidelberg v. St. Francois Co., 100 Mo. 69; Chippewa Bridge Co. v. Durand, 122 Wis. 85, 106 Am. St. 939; Tiedeman on Municipal Corp. sec. 173; Beach on Public Corp. sec. 698; Dillon's Municipal Corp. (4 Ed.) sec. 457; Reams v. Cooley, 171 Cal. 150, 1917 Am. Ann. Cas. 1261; Zottman v. San Francisco, 20 Cal. 96, 81 Am. Dec. 100; Head v. Ins. Co., 2 Cranch, 156; State v. Pullman, 23 Wash. 583; Anderson v. Ripley County, 181 Mo. 58; Moss v. Kauffman, 131 Mo. 429; Saline County v. Wilson, 61 Mo. 237; State ex rel. v. Mackin, 200 Mo.App. 422; Sparks v. Jasper County, 213 Mo. 230; Dolezal v. Bostick, 139 P. 964; Green v. Okanogan, 111 P. 226; Hannan v. Board of Education, 30 L. R. A. (N. S.) 214; Fones Bros. Hdw. Co. v. Erb, 54 Ark. 645; State ex rel. Cook v. Detroit, 26 Mich. 263; Ricketson v. Milwaukee, 105 Wis. 591; Baltimore v. Flack, 104 Md. 107; Holmes v. Detroit, 120 Mich. 226; McMullin v. Hoffman, 174 U.S. 639. (2) The contract is void not merely because the method prescribed by statute was not followed, but because the county itself has no power to make such contract in any manner other than in that prescribed by statute. The adoption of the prescribed mode is a jurisdictional prerequisite to the exercise of that power at all. Zottman v. San Francisco, 81 Am. Dec. 100; Wolcott v. Lawrence Co., 26 Mo. 277; Heidelberg v. St. Francois Co., 100 Mo. 69; Chippewa Bridge Co. v. Durand, 106 Am. St. 950, 122 Wis. 85; Reams v. Cooley, Ann. Cas. 1917 A, 1260, 171 Cal. 150; Head v. Ins. Co., 2 Cranch, 156; Moss v. Kauffman, 131 Mo. 429; State ex rel. v. Harris, 96 Mo. 37; Book v. Earl, 87 Mo. 246, 256; Saline Co. v. Wilson, 61 Mo. 237; State ex rel. v. Mackin, 200 Mo.App. 422; Sparks v. Jasper County, 213 Mo. 232. (3) There is no such thing known to the law as ratification by a county of a void contract, or of estoppel of the county or of a taxpayer to deny its validity. State v. Pullman, 83 Am. St. 836; Wolcott v. Lawrence Co., 26 Mo. 278; Heidelberg v. St. Francois Co., 100 Mo. 76; Zottman v. San Francisco, 81 Am. Dec. 103; Sturgeon v. Hampton, 88 Mo. 213; State ex rel. v. Mackin, 200 Mo.App. 427; Cox v. Mignery, 126 Mo.App. 676; Perkinson v. Hoolan, 182 Mo. 194; Wheeler v. Poplar Bluff, 149 Mo. 46; Newberry v. Fox, 37 Minn. 141; Portland v. Bituminous Paving Co., 33 Ore. 307; Chippewa Bridge Co. v. Durand, 106 Am. St. 939; McMullin v. Hoffman, 174 U.S. 654. (4) Where the statute prescribes the mode and manner by which the county may contract, any attempt made otherwise than as prescribed by statute is not binding or obligatory as a contract. In such case no cause of action on a quantum meruit can arise, and the doctrine of implied liability has no application. Reams v. Cooley, Ann. Cas. 1917 A, 1260, 171 Cal. 150; 9 Corpus Juris, 441, 442; Chippewa Bridge Co. v. Durand, 106 Am. St. 950; Zottman v. San Francisco, 81 Am. Dec. 104; Brady v. New York, 16 How. Pr. 432; State v. Pullman, 83 Am. St. 839, 23 Wash. 583; Anderson v. Ripley Co., 181 Mo. 60; Keating v. City of Kansas, 84 Mo. 119; McMullin v. Hoffman, 174 U.S. 654; Ft. Scott v. Brok. Co., 117 F. 51; Addis v. Pittsburgh, 85 Pa. St. 379. (5) Injunction may be had by any interested taxpayer to prevent the county officials from paying out public money on a void and illegal contract. Shackelford v. Jefferson City, 167 Mo.App. 62; Matthis v. Cameron, 62 Mo. 504; 15 Corpus Juris, 561; R. S. 1919, sec. 1969; Black v. Ross, 37 Mo.App. 257; Dolezal v. Bostick, 41 Okla. 743; Hannan v. Board of Education, 30 L. R. A. (N. S.) 231, 107 P. 646; Newmeyer v. Railway, 52 Mo. 89; Ranney v. Bader, 67 Mo. 479; Chippewa Bridge Co. v. Durand, 106 Am. St. 948; Book v. Earl, 87 Mo. 248; Kellogg v. School Dist., 13 Okla. 285. (6) Even though the contract had been entered into by the county and the contractor in good faith and work done by the contractor in compliance therewith, that would constitute no defense, nor would it affect the taxpayer's right to injunction. Mo. Constitution, art. 4, sec. 48; Chippewa Bridge Co. v. Durand, 106 Am. St. 947; Wolcott v. Lawrence Co., 26 Mo. 277; Black v. Ross, 37 Mo.App. 257; Dolezal v. Bostick, 41 Okla. 743; 15 Corpus Juris, 541; Hannan v. Board of Education, 30 L. R. A. (N. S.) 230; Reams v. Cooley, Ann. Cas. 1917A, 1262; State v. Pullman, 83 Am. St. 836; Anderson v. Ripley Co., 181 Mo. 60; Sturgeon v. Hampton, 88 Mo. 214; Railroad v. Hatton, 102 Mo. 56; Railroad v. Wayne Co., 125 Mo. 357; Book v. Earl, 87 Mo. 256. (7) The fact that if the contract in controversy is held void it may work a hardship on the contractor, is no defense to this action. The contractor knew the facts and ought to have known the law. It suffers only what it ought to have anticipated. R. S. 1919, sec. 10734; 9 Corpus Juris, 441-2; Wolcott v. Lawrence Co., 26 Mo. 272; Mo. Constitution, art. 4, sec. 48; Heidelberg v. St. Francois Co., 100 Mo. 69; Chippewa Bridge Co. v. Durand, 122 Wis. 85; Reams v. Cooley, Ann. Cas. 1917A, 1263; Zottman v. San Francisco, 81 Am. Dec. 103; State v. Pullman, 23 Wash. 583; Anderson v. Ripley Co., 181 Mo. 60; Moss v. Kauffman, 131 Mo. 429; Book v. Earl, 87 Mo. 256; State ex rel. v. Mackin, 200 Mo.App. 426; Sparks v. Jasper County, 213 Mo. 230. (8) Even if the method used in letting the contract had secured the best results obtainable for the county, that fact would have constituted no defense to this action. State ex rel. v. Mackin, 200 Mo.App. 425; Book v. Earl, 87 Mo. 256; Chippewa Bridge Co. v. Durand, 106 Am. St. 950; Reams v. Cooley, Ann. Cas. 1917A, 1260. (9) Since the contractor could not recover in a direct action against the county on the contract involved, its rights are in no way prejudiced by the fact that this action was not brought immediately after the contract was made. Plaintiff was not guilty of laches, nor is it estopped to maintain this action. Dolezal v. Bostick, 139 P. 964; Wolcott v. Lawrence Co., 26 Mo. 272; Heidelberg v. St. Francois Co., 100 Mo. 69; Chippewa Bridge Co. v. Durand, 106 Am. St. 931; Reams v. Cooley, 1917A, Ann. Cas. 1260; Book v. Earl, 87 Mo. 246; State ex rel. v. Mackin, 200 Mo.App. 422; Perkinson v. Hoolan, 182 Mo. 189; 21 Corpus Juris, 217, 255; Troll v. St. Louis, 257 Mo. 660. (10) Actual knowledge of the unlawful use of public money by the county court is necessary to deprive a taxpayer of the right to object on the ground of laches. 21 Corpus Juris, 255; Black v. Detroit, 119 Mich. 571; Engstad v. Dinnie, 8 N. Dak. 1.
In Banc
-- From a judgment of the Clay County Circuit Court, granting plaintiff (respondent) a permanent injunction against defendants...
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