Koch v. Board of Regents of Northwest Missouri State College, 21974

• Decision Date: 01 March 1954
• Docket Number: No. 21974,21974
• Citation: 265 S.W.2d 421
• Parties: KOCH et al. v. BOARD OF REGENTS OF NORTHWEST MISSOURI STATE COLLEGE et al.
• Court: Missouri Court of Appeals

Page 421

265 S.W.2d 421

KOCH et al. v. BOARD OF REGENTS OF NORTHWEST MISSOURI STATE COLLEGE et al.

No. 21974.

Kansas City Court of Appeals, Missouri.

March 1, 1954.

Gene Thompson, J. Dorr Ewing, Maryville, Alva F. Lindsay, St. Joseph, for appellants.

Marshall E. Ford, Maryville, J. V. Gaddy, St. Joseph, for respondents.

DEW, Judge.

This action seeks a decree declaring unlawful and void a contract made by the defendant Board of Regents of the Northwest Missouri State College with defendant The Thomas Construction Company for the restoration of one of the buildings of said college partially destroyed by fire, and to enjoin said Board from continuing performance under that contract and from making any payment thereunder to the defendant Construction Company out of public funds belonging to the taxpayers of Missouri. The defendants filed their separate motions to dismiss the cause on the ground that the petition failed to state facts sufficient to constitute a cause of action against them. The trial court sustained said motions. Thereupon, the plaintiffs appealed to the Supreme Court of Missouri from such judgment of dismissal. The Supreme Court has transferred the appeal to this court on jurisdictional grounds. 256 S.W.2d 785.

While the appeal was pending in the Supreme Court the defendants filed their separate motions therein to dismiss this appeal, which motions likewise come to us for disposition.

The material allegations of the plaintiffs' petition are that plaintiffs are taxpayers, property owners and residents of Buchanan County, Missouri, a part of the Fifth College District of Missouri, in which is located the Northwest Missouri State Teachers College; that the defendant Board of Regents is empowered by statutes to manage and control the affairs of said college and the expenditures of public funds therefor; that one of the buildings of said college, built and maintained by the expenditure of public funds and state appropriations, situated on the college campus at Maryville, was severely damaged by fire on April 28, 1951; that the cost of the restoration of said building will exceed $10,000; that in December, 1951, defendant Board of Regents contracted with defendant Thomas Construction Company to repair the building for a total sum of $203,390; that when said contract was made defendant Board of Regents had on deposit and under its control public funds of the taxpayers of the state exceeding $250,000; that said expenditure would have to be made from such funds, which is a matter of puplic interest to the taxpayers of the state; that the defendant Board of Regents seek to so expend such funds in the amount of $203,390; that the Board at no time requested or solicited by advertising in any newspaper in Nodaway County public bids for such restoration as required by law. It is further alleged that, before said contract was entered into, the plaintiffs offered the Board in writing to perform said contract under the same terms and specifications for the sum of $173,616 and to furnish surety bond to secure performance, which offer the Board refused to consider, and wrongfully colluded with and awarded the contract to Thomas Construction Company; that plaintiffs were sufficiently experienced and equipped to perform such contract fully and efficiently; that the failure of the Board to advertise for bids, its refusal to consider the offer of the plaintiffs, and the award of the contract to the defendant Thomas Construction Company were unlawful, fraudulent and contrary to public interest and would be a wrongful expenditure of public money. It is averred that plaintiffs, as taxpayers, represent all the taxpayers and the public interest and have no adequate remedy at law; that irreparable harm will result if the relief prayed for is not granted. The prayer of the petition is that the court adjudge the contract unlawful; that it be set aside and for naught held; that the Board be permanently enjoined and restrained from continuing with said contract or making any payment thereunder to the Thomas Construction Company, and for further relief as to the court may seem proper. The record shows no restraining order or temporary injunction issued or requested, nor is it claimed that any such order was made.

The plaintiffs seek to uphold the sufficiency of its petition under Section 8.250 RSMo 1949, V.A.M.S., regulating the expenditure of public funds. On the merits of the appeal the defendants contend that the above section does not apply for the reason that the funds referred to in the petition were not public funds in the sense therein used, and that the petition, absent the conclusions contained therein, which they say they do not admit by their motion to dismiss the cause, fails to state a cause of action.

However, our attention must necessarily be first directed to the defendants' motions to dismiss this appeal. These motions, filed January 2, 1953, after the appeal was taken and before submission of the same, state that after the trial court ruled that the petition stated no cause of action, defendants were obligated to proceed with and to complete the contract in the shortest time reasonably practicable; that prior to December 15, 1952, the contract was fully performed and all payments due thereunder were duly paid; that meanwhile plaintiffs delayed the prosecution of their appeal until after the completion of the contract; that the issues and matters in controversy here have become moot and the appeal should therefore be dismissed.

With the defendants' motions to dismiss this appeal there was filed the supporting affidavit of Richard L. Douglas to the effect that he was and had for thirty-three years been a member of the Board of Regents of the Northwest Missouri State College and is its Vice-President and a member of its Executive Committee, and that he knows the...