Independent School District No. 5 ex rel. Moore v. Collins

• Decision Date: 08 December 1908
• Citation: 98 P. 857,15 Idaho 535
• Parties: INDEPENDENT SCHOOL DISTRICT No. 5 ex rel. FRANK L. MOORE and J. C. RICHCREEK, Respondents, v. JOSEPH R. COLLINS, Appellant
• Court: Idaho Supreme Court

98 P. 857

15 Idaho 535

INDEPENDENT SCHOOL DISTRICT No. 5 ex rel. FRANK L. MOORE and J. C. RICHCREEK, Respondents, v. JOSEPH R. COLLINS, Appellant

Supreme Court of Idaho

December 8, 1908

SCHOOL DISTRICT-CONSTRUCTION OF STATUTE-BOARD OF TRUSTEES-PAYMENT OF MONEY ON VOID CONTRACT-REFUSAL BY BOARD TO BRING ACTION-RIGHT OF TAXPAYER-ALLEGATIONS OF COMPLAINT.

1. Statutes in their nature penal should not be extended by construction beyond their natural meaning.

2. The clear intention of the provisions of sec. 82, of our school laws, as amended by the Session Laws of 1905, p. 71, was to prohibit a trustee from making a contract with his district in which he is pecuniarily interested.

3. The penalty or prohibition in said section is that no action can be maintained or recovery had against the district on such contracts; but that does not change the rule to the effect that money paid by a municipal corporation upon a void contract may be recovered back.

4. The rule that neither party to a transaction will be permitted to take advantage of its validity while retaining its benefits applies only to voidable contracts and not to contracts of a municipal corporation that are absolutely void.

5. Under the provisions of said sec. 82, school trustees are prohibited from having any interest in any contract let or made by or with the board of trustees of such district or with any officer thereof, and in case such a contract is made, the same is void and no action can be maintained or recovery had in favor of the district upon any such contract or obligation. This rule is founded in public policy, and is a salutary one to prevent the risk of abuses in the public service.

6. Where a municipal corporation has paid money on a void contract and the properly constituted authorities of such corporation refuse to bring an action to recover back the money so illegally paid, an action therefor on behalf of the corporation may be maintained by any taxpayer thereof.

7. Where an action is brought under the provisions of said sec 82, to recover money paid on a void contract, the complaint must allege that such contract was made with the defendant during the time that such defendant was a member of the board of trustees of the district.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District, for the County of Latah. Hon. Edgar C. Steele, Judge.

Action to recover money alleged to have been paid on a void contract by a school district to one of its trustees. Judgment for plaintiff. Reversed.

Reversed and remanded, with instructions. Costs awarded to appellant.

Orland & Smith, for Appellant.

The statute upon which the action is based is in its nature penal, as it provides for a forfeiture, and should not be extended by construction beyond its natural meaning. (Black Interpretation of Laws, pp. 242, 243, 292, 293; Askew v. Ebberts, 22 Cal. 263.)

The plaintiffs, in order to recover, must allege every fact to bring them within the provisions of the statute, or the complaint will be demurrable. (County of Bingham v. Woodin, 6 Idaho 284, 55 P. 662; Trumpler v. Bemerly, 39 Cal. 490.) When the district received the articles of merchandise and paid for them it was a completely executed contract, and no action would lie to recover back the money even by a municipal or a quasi-municipal corporation. (United States v. McKnight, 8 Otto, 179, 25 L.Ed. 115; Elliott v. Swartwout, 10 Pet. 138, 9 L.Ed. 374; Village of Pillager v. Hewett, 98 Minn. 265, 107 N.W. 815; Farmer v. City of St. Paul, 65 Minn. 176, 67 N.W. 991, 33 L. R. A. 199; Brown v. City of Atchison, 39 Kan. 37, 7 Am. St. Rep. 515, 17 P. 465; Argenti v. San Francisco, 16 Cal. 256; Village of Knopf, 199 Ill. 444, 65 N.E. 322; Frick v. Brinkley, 61 Ark. 397, 33 S.W. 527.) Neither party to a transaction will be permitted to take advantage of its invalidity while retaining the benefits. (Union G. M. Co. v. Rocky Mountain N. Bk., 96 U.S. 640, 24 L.Ed. 649; Whitney Arms Co. v. Barlow, 63 N.Y. 64, 20 Am. Rep. 504; Memphis & L. R. R. Co. v. Dow, 19 F. 389; Brown v. Atchison, 39 Kan. 37, 7 Am. St. Rep. 524, 17 P. 465.) This law was not intended to be used for the purpose of allowing school districts to obtain something for nothing, and while no action may be maintained under this act when a party is brought within its provisions, it does not prevent a recovery upon an implied promise. (Capital Gas Co. v. Young, 109 Cal. 140, 41 P. 869, 29 L. R. A. 463; Turner v. Cruzen, 70 Iowa 202, 30 N.W. 483; Call Pub. Co. v. City of Lincoln, 29 Neb. 149, 45 N.W. 245; City of Concordia v. Hagaman, 1 Kan. App. 35, 41 P. 133; Currie v. School Dist., 35 Minn. 163, 27 N.W. 922.)

The plaintiff has no legal capacity to sue by the provisions of sec. 4090, Rev. Stat. (Pomeroy's Code Remedies, 3d ed., sec. 142.) The right of the taxpayer to protect the public treasury is by enjoining the payment, and they have not the right to maintain an action to recover money already paid, in jurisdictions where that is permitted. (Brownfield v. Houser, 30 Ore. 534, 49 P. 843; Sears v. James, 47 Ore. 50, 82 P. 15; Cathers v. Moores (Neb.), 110 N.W. 689; Curtis v. Sprague, 51 Cal. 239.)

A private citizen as taxpayer cannot maintain an action to redress a public wrong unless he has sustained special damages, and the damages or wrongs are not such as are common to the public generally. (McCloskey v. Kreling, 76 Cal. 512, 18 P. 433; East St. Louis v. O'Flynn, 119 Ill. 200, 59 Am. Rep. 795, 10 N.E. 395; Wyandotte & K. C. B. Co. v. Wyandotte Co., 10 Kan. 326; Mayor v. Alexandria C. Co., 12 Pet. 92, 9 L.Ed. 1012; Stiles v. Guthrie, 3 Okl. 26, 41 P. 384; Hale v. Cushman, 6 Met. (Mass.) 425; Hill v. Pierson, 45 Neb. 503, 63 N.W. 835; Fort Plain Bridge Co. v. Smith, 30 N.Y. 44.)

Morgan & Morgan, for Respondents.

There was no obligation upon the part of the school district to Collins and Orland Hardware Co. if the company had furnished supplies to the district. The transactions upon which the bills were allowed, the warrants drawn, and the money procured were absolutely void. (Rev. Stat., sec. 733; Sess. L. 1899, p. 105; Sess. L. 1905, p. 71; Dillon on Municipal Corp., sec. 444; Nuckols v. Lyle, 8 Idaho 589, 70 P. 401; Macy v. City of Duluth, 68 Minn. 452, 71 N.W. 687; Land, L. & L. Co. v. McIntyre, 100 Wis. 245, 258, 69 Am. St. Rep. 915, 925, 75 N.W. 964; Village of Dwight v. Palmer, 74 Ill. 295; McGregor v. Logansport, 79 Ind. 166; Goodrich v. City of Waterville, 88 Me. 39, 33 A. 659; Board of Commrs. v. State, 66 Kan. 634, 72 P. 284; City of North Port v. North Port T. S. Co., 27 Wash. 543, 68 P. 204; Foster v. City of Cape May, 60 N.J.L. 78, 36 A. 1089.)

Nor does the allowing of the bills, issuing of the warrants or paying the money validate the void transaction. (Milford v. Milford Water Co., 124 Pa. 610, 17 A. 185, 3 L. R. A. 122; Capron v. Hitchcock, 98 Cal. 427, 33 P. 431.)

Public moneys paid out contrary to law, although such payment is voluntary and made with a full knowledge of all the facts of the transaction, may be recovered back. (Ada County v. Gess, 4 Idaho 611, 43 P. 71; Fremont County v. Brandon, 6 Idaho 482, 56 P. 264; Anderson v. Lewis, 6 Idaho 51, 52 P. 163; Tacoma v. Lillis, 4 Wash. 797, 31 P. 321, 18 L. R. A. 372; Ward v. Town of Barnum, 10 Colo. App. 496, 52 P. 412; City of Chaska v. Hedman, 53 Minn. 525, 55 N.W. 737; Mock v. City of Santa Rosa, 126 Cal. 330, 58 P. 826; Frederick v. Douglas Co., 96 Wis. 411, 71 N.W. 798 (see Opinions Winslow, Judge); Land, L. & L. Co. v. McIntyre, 100 Wis. 245, 258, 69 Am. St. Rep. 915, 925, 75 N.W. 969.)

A taxpayer has a right to enforce on behalf of the corporation a cause of action of a public corporation of which he is a member when its officers neglect or refuse to perform their duty in that respect. (Smith on Municipal Corp., sec. 1647a; Dillon on Municipal Corp., sec. 915; Orr v. State Board, 3 Idaho 190, 28 P. 416; Dunn v. Sharp, 4 Idaho 98, 35 P. 842; Nuckols v. Lyle, supra; Quaw v. Paff, 98 Wis. 586, 74 N.W. 369; Land, Log & L. Co. v. McIntyre, 100 Wis. 245, 258, 69 Am. St. Rep. 915, 925, 75 N.W. 964; Webster v. Douglas County, 102 Wis. 181, 72 Am. St. Rep. 870, 77 N.W. 885; In re Coles' Estate, 102 Wis. 1, 72 Am. St. Rep. 854, 78 N.W. 402; Stroud v. Consumer's Water Co., 56 N.J.L. 422, 28 A. 578.)

The rule contended for by appellant that "Neither party to a transaction will be permitted to take advantage of its invalidity while retaining the benefits," applies only to voidable contracts, and not to a transaction that is absolutely void. (Nuckols v. Lyle, supra; Smith v. City of Albany, 61 N.Y. 444; Land, L. & L. Co. v. McIntyre, supra; Berka v. Woodward, 125 Cal. 119, 73 Am. St. Rep. 31, 57 P. 777, 45 L. R. A. 420; Capron v. Hitchcock, supra; Goodrich v. City of Watsonville, supra; City of Northport v. Northport T. S. Co., supra.)

SULLIVAN, J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This action was brought in the name of Independent School District No. 5 of Latah County, upon the relation of Frank L. Moore and J. C. Richcreek, against Joseph Collins, to recover from said Collins the sum of $ 308.65, with lawful interest thereon, alleged to have been paid by said district upon a void contract.

After alleging the corporate existence of said district, it is alleged that during the time mentioned in the complaint, the defendant Collins was a qualified and acting member of the board of trustees of said district, and from about September 14, 1905, until September 10, 1906, was chairman of said board; that during said period of time the defendant and one Orland were partners, doing business under the name of Collins and Orland Hardware Co., and that defendant Collins owned a three-fourths interest in said company;...