Hufford v. Flynn

• Decision Date: 17 March 1921
• Citation: 48 N.D. 33,182 N.W. 941
• Parties: HUFFORD v. FLYNN et al., Board of City Com'rs.
• Court: North Dakota Supreme Court

48 N.D. 33

182 N.W. 941

HUFFORD

v.FLYNN et al., Board of City Com'rs.

Supreme Court of North Dakota.

March 17, 1921.

Syllabus by the Court.

A court of equity cannot properly interfere with, or in advance restrain, the discretion of a board of city commissioners, while such board, in the exercise of powers conferred by the charter or general laws, is considering a proposition as to whether certain streets and alleys in the city are to be paved.

The record transmitted to this court on appeal cannot be impeached, changed, or altered by affidavit or other evidence of matters dehors the record. Such record imports verity, and is conclusive evidence of the proceedings had in the lower court. If the record is incomplete or incorrect, amendment or correction must be sought by appropriate proceedings, and not by impeachment on the hearing in this court.

Appeal from District Court, Ramsey County; Buttz, Judge.

Action by E. E. Hufford, individually and on behalf of the property holders and taxpayers of the City of Devils Lake, against Edward F. Flynn and others, members of the Board of City Commissioners of the City of Devils Lake. Judgment for defendants, and plaintiff appeals. Affirmed.H. S. Blood, of Devils Lake, for appellant.

Torger Sinness, of Devils Lake, for respondents.

CHRISTIANSON, J.

The plaintiff brings this action for the purpose of enjoining the defendants, city commissioners of the city of Devils Lake, from procuring plans and specifications for a certain proposed paving project in that city and paying the engineers retained to prepare the same for their services. The complaint alleges, in substance, that the plaintiff is a taxpayer in the city of Devils Lake and owns property which will be liable to special assessment for the construction of a certain pavement proposed to be constructed by the defendant city commissioners; that between October, 1919, and January 1, 1920, the city commission of Devils Lake created paving district No. 1, and constructed therein paving of the approximate cost of $450,000; that on November 23, 1920, the board of city commissioners, deeming it necessary to extend the paving into other streets and avenues outside of said paving district No. 1, placed upon its first reading two certain ordinances, one creating paving district No. 2, and one creating paving district No. 3; that at the same meeting the board of city commissioners instructed the city engineer and the consulting engineer to prepare plans and specifications and an estimate of the probable cost of extending the paving, already constructed in the city, upon certain specified streets and avenues in said paving districts Nos. 2 and 3, and directed that said plans, specifications, and estimates of cost be for certain specified types of paving; that on November 30, 1920, at a regular meeting of said city commissioners, said two ordinances were placed upon their second reading and final passage; that the said engineers proceeded in accordance with the directions of the city commissioners and began to make a survey of the streets and alleys which it was proposed to pave and to collect the data for the preparation of the plans and specifications; that a large majority of the property holders affected by the proposed paving have protested to the said city commissioners and remonstrated against said paving or any part thereof being constructed, but that, in disregard of said protests, the engineers are proceeding with the survey and preparations of their plans and specifications and that they intend to present and file said plans and specifications with the city auditor as soon as they are prepared, and that the city commissioners intend to pay out of the city treasury a large sum to said engineers to compensate them for said work and will do so unless restrained from so doing; that such payment will be made by warrants drawn upon paving districts numbered 2 and 3, and that said board will order that the property of said districts, including the property of plaintiff, be specially assessed to pay said warrants; that the defendants are threatening to proceed with the procuring of said plans, and with the construction of said proposed paving, and, unless restrained from so doing, will incur costs and expenses therefor and cause the same to be paid by warrants drawn upon said paving districts Nos. 2 and 3; that no necessity exists for the making of said proposed improvement or for procuring plans and specifications therefor; that said board has proceeded arbitrarily, knowing that no necessity exists, and that their acts have been and will continue to be against the wishes and desires of the plaintiff, and that the cost thereof will be prohibitive. The demand for relief is that the defendants be enjoined from doing any of the acts complained of. The defendants demurred to the complaint upon the ground, among others, that it did not state facts sufficient to constitute a cause of action. The trial court issued an order to show cause why injunction should not issue pendente lite. A hearing was had upon such order, at which affidavits were presented by the respective parties. The plaintiff submitted the verified complaint and his own affidavit stating substantially the same facts as those set forth in the complaint. The defendants submitted six affidavits, namely, the affidavits of four members of the city commission, the city...