McGuire v. City of Rapid City

• Decision Date: 10 October 1889
• Citation: 43 N.W. 706,6 Dak. 346
• Parties: McGuire v. City of Rapid City.
• Court: South Dakota Supreme Court

43 N.W. 706

6 Dak. 346

McGuire

v.City of Rapid City.

Supreme Court of the Territory of Dakota.

Oct. 10, 1889.

Appeal from district court, Pennington county.

Carland, J., dissenting.

*707Chauncey L. Wood and William E. Church, for appellant. J. W. Fowler and Van Cise & Wilson, for respondent.

TRIPP, C. J.

This is an action brought by the plaintiff to recover a balance alleged to be due him from the defendant city for labor and expenses performed and incurred in changing the channel of Rapid creek, where it passes through said city, in accordance with an alleged contract made with the officers of said city. Plaintiff alleges that by the terms of said contract he was to be paid the sum of $8,500, of which $5,000 only has been paid, leaving still due and unpaid the sum of $3,500. The defendant alleges that the contract upon which the plaintiff seeks to recover was without the power of said city, and was illegal and void; and that said city had no power or authority to enter into or make said contract in manner and form as set forth and claimed by the plaintiff. In other words, the defense claims (1) that the city, under its charter, had no power to make such contract; (2) if it had power to make such contract, it could only do so in the manner prescribed by its charter, and not in the manner in which it is claimed such contract was made. The case was tried by a jury, and a verdict directed for the plaintiff; upon which, judgment being entered, the defendant appeals to this court. The contract was in writing, signed by the plaintiff and the defendant, by its proper officers, and provided for the performance of the work “to the satisfaction of the city engineer,” and for which the plaintiff was to be paid the sum of $8,500; 75 per cent. of the value of the work done to be paid on the first day of each month, and the balance when the work was completed. The plaintiff, over defendant's objection, introduced in evidence the contract, plans, and specifications, also the certificate of the engineer as to the completion of the work, together with some oral testimony identifying and explaining the papers offered in evidence, and then rested. Defendant thereupon offered in evidence the city charter, and rested; whereupon both parties moved the court to direct the verdict, and, the motion of the plaintiff being granted, the defendant brings the judgment entered thereon here for reversal, and relies upon the defenses made below, to-wit: (1) That the contract was ultra vires and void; (2) that the defendant had no power to contract in manner as herein claimed; and (3) that the certificate of the engineer was not evidence of performance of the contract sufficient to sustain the verdict.

The charter of Rapid City is a special one, granted by the legislature of the territory of Dakota, and contains the grants of power usual in such enactments. Among such powers conferred, and through which it is contended the city obtained its authority, if at all, to make this contract, is the following: “To locate, open, widen, extend, grade, pave, macadamize, bridge, curb, gutter, drain, improve, clean, and keep in repair all sidewalks, streets, avenues, and alleys in the city; to prevent obstructions, excavations, holes, and pit-falls in any of the same; and to require the owners or occupants of lots or buildings, at their own expense, to remove from all sidewalks, streets, avenues, and alleys opposite thereto snow, dirt, rubbish, and all other obstructions, including posts, signs, awnings, and all overhanging obstacles.” City Charter, § 7, subd. 6. As will be observed, this section confers upon the city council very general and extensive powers in reference to the matters and things therein enumerated. It may “drain and improve” and keep in repair all “streets, avenues, and alleys,” etc., and “prevent obstructions,” etc., “therein.” The section does not prescribe the manner of executing such powers, or attempt to limit the council in the exercise of its judgment and discretion in establishing drainage or making improvements; and it will therefore be restrained or controlled by the courts only where, under the circumstances as they are made to appear, it has exceeded the bounds of reasonable discretion. While the evidence brought to this court is very meager, it can be understood therefrom that the creek known as “Rapid Creek,” before this contract, ran in an irregular manner through the lots, blocks, and streets of the city, and that the object of this new channel was to carry such stream in a direct line through the city,-for what precise purpose does not distinctly appear; but, as it was done by the authority of the city, in absence of any testimony to the contrary it must be presumed that it was done for the benefit of the public in draining or otherwise improving its streets, alleys, etc. It is true that in municipal contracts the power to make them must be proved, and not left to inference, and that all persons who deal with such corporations must see to it that the contract is one which the corporation has power to make; but it does appear in evidence that the subject-matter of the contract was water-surface water and running water-within the city limits; a creek flowing in a zigzag direction through a growing and populous city; a stream fed by mountain springs, and swollen at times by sudden rains and melting snows. Such a creek, at least so far as it interfered with or crossed *708the streets and alleys of the city, was within the control and subject to the municipal power of the city. The city might not, perhaps, be authorized to divert it from the land and lots of those who might insist upon their rights as to the natural channel of the stream; but it does not lie in defendant's mouth to urge such defense in behalf of those who have not sought to make it for themselves. It does not require much effort of the imagination to see that a straight, deep, and direct channel for such a stream would improve the streets, avenues, and alleys of the city, though it might not be included within the proper term “drainage;” yet, where a city has such general powers as enumerated in this section, and conferred upon the city council, when exercised in such a manner as not to be in violation of the express terms of the charter, it would not seem too great an exercise of the usual presumption which attends public officers to infer that such powers were properly exercised. In absence of any testimony that the city council was entering into such a contract in fraud of public rights, or in the interest of private parties; that the drainage of the streets, avenues, and alleys would not be benefited, or their condition thereby improved,-we think there was enough shown to justify the court in holding their action to be a proper...