Miles v. Holt County

• Decision Date: 10 March 1910
• Docket Number: 15,876
• Parties: GEORGE A. MILES, APPELLEE, v. HOLT COUNTY, APPELLANT
• Court: Nebraska Supreme Court

125 N.W. 527

86 Neb. 238

GEORGE A. MILES, APPELLEE, v. HOLT COUNTY, APPELLANT

No. 15,876

Supreme Court of Nebraska

March 10, 1910

APPEAL from the district court for Holt county: WILLIAM H. WESTOVER JUDGE. Reversed.

REVERSED.

E. H Whelan and R. R. Dickson, for appellant.

J. A Donohoe and M. F. Harrington, contra.

LETTON, J. BARNES, J., took no part in the consideration or decision in this case. ROSE, J., dissenting.

OPINION

LETTON, J.

In January, 1905, the county board of Holt county took action under the provisions of chapter 75, laws 1903 (Ann. St. 1903, secs. 10644-10691) commonly known as the "Scavenger act", to enforce the collection of delinquent taxes against real estate in that county. The act provides for the publication of a notice of the filing of the petition in the statutory action in the district court, and for a description of the lands or lots affected to be published as a part of the notice. The act also provides (section 10650): "The county commissioners of each county shall designate the newspaper in which said notice, and in which all notices of tax sales made by the county treasurer hereinafter provided for, shall be published, provided, the county treasurer shall designate such newspaper where the county commissioners fail to do so." The county treasurer, pursuant to the direction of the county board, prepared the petition required by the statute and the notice of the filing thereof. On the 21st of April, 1905, the county board designated the newspaper in which the notice should be published, the record showing: "On motion the printing of the scavenger delinquent tax list was awarded to the O'Neil Frontier." The county treasurer, assuming that the county board did not "designate the newspaper", as the statute required, on the 2d day of July, 1905, designated the Holt County Independent as the newspaper in which the notice should be published, and gave the copy for the notice to the plaintiff, who is publisher of that paper, for the purpose of publication. The notice was so lengthy and contained so many descriptions that it was necessary to have the typesetting done in a larger place than O'Neill, in order to have the notice published within the statutory time. The plaintiff received the notice about 2 o'clock in the morning of July 2, and took it to Sioux City to be put in type. Prior to this time the Independent had published in its account of the proceedings of the county board the resolution by which the Frontier was designated as the paper to publish the notice. Before giving the notice to the plaintiff the county treasurer consulted the county attorney, Arthur F. Mullen, and was advised by him that the designation by the county board as shown by the record of proceedings was not a legal designation, and that it was his duty to designate the newspaper in which the notice should be published.

On the 3d day of July an action in mandamus was brought by the owner and publisher of the Frontier against the county treasurer to compel him to deliver the notice to him for publication. This writ was denied by the district court. On appeal to this court it was held, ALBERT, C., writing the opinion, that, while the relator was entitled to the publication of the notice under the facts shown, yet the district court was justified in denying the writ, because when the case was heard the time was too short for the Frontier to prepare and publish the list within the time required by law. State v. Cronin, 75 Neb. 738, 106 N.W. 986. It may be regarded as settled by this decision that, the county board having acted in the matter of designating the newspaper to publish the notice, the county treasurer, while authorized to prepare the notice and deliver it to the printer, had no right to divert its publication from the newspaper in which the county board had decided that it should be published.

The notice was published in the Independent, as was also, some time later, the notice of sale of the land and lots foreclosed upon by tax decree. No further action was taken by the county board respecting the publication of notice. Three extra copies of each number of the paper were furnished, as the statute provides, to the county clerk, the auditor of state, and the county treasurer, and proof of publication was duly filed. After the decree was rendered many taxpayers paid the amount of the decree, including a docket fee of $ 1 upon each description. A large number of tracts upon which the taxes were not paid were sold to private bidders at the sale under the decree, and a large number of said tracts were bought in by the county board as trustee, under the provisions of the law. The record shows that the county board attended the sale for taxes day by day until the bulk of the lands had been disposed of; that the county collected large amounts of money as taxes, and that the county treasurer collected $ 4,263 docket fees, on the tax suit. All this money was turned into the general fund of the county. In State v. Fink, 73 Neb. 360, 102 N.W. 771, where it appeared that a notice of this nature had been irregularly published, it was held that the publication, under the liberal provisions of the statute, was sufficient to confer jurisdiction upon the district court to render the decree. So that the county received equal benefit from the publication in the newspaper of the plaintiff to that it would have had if the publication had been made in the Frontier.

If the evidence of the plaintiff is believed, there was no collusion between him and the county treasurer, nor was the giving of the notice to him for publication the result of deliberate, wrongful action on the part of that officer, and this seems to be the finding of the trial court. The action of the treasurer was very severely stigmatized by Commissioner ALBERT in State v. Cronin, supra, "as a wanton disregard of duty and a reckless attempt to thwart the purpose of the governing body of the county." It is now insisted that the evidence in this case, that his action was taken under the advice of the county attorney, was not before the court in that action, but, even so, we are inclined, in view of the evidence before us, to be somewhat skeptical as to there being any substantial doubt upon his part concerning the sufficient designation of the Frontier by the county board.

The question presented is whether or not one who furnishes material and performs services for a county under a void contract, from the result of which service the county has secured a financial gain, can be permitted to recover the reasonable value thereof, and, if so, what is the rule by which to ascertain such reasonable value.

The defendant contends that this is an action upon contract, but we doubt whether the language of the petition is susceptible of this construction. It pleads substantially that the county determined to enforce all delinquent tax liens under the "scavenger act", and directed proper action to be taken thereunder; that under said direction the county treasurer prepared and filed the petition in the district court; that he caused a notice in statutory form to be published in the Holt County Independent, and that the county treasurer designated the Holt County Independent as the newspaper in which the said notice should be published; that the treasurer made this designation, and that plaintiff received the notice, and published the same in good faith; that the defendant and the county board of said county acquiesced in the publication of the notice during the four weeks that it was published, received and used copies of the same, acted under the decree, and ratified the publication by the plaintiff; "that the reasonable, just and true charge for publishing said notice for said four weeks in said newspaper was the sum of $ 2,669.50"; that by reason of the publication of said notice and the approval thereof, and the ratification thereof, and by reason of each and every one of the said acts, there became due to the plaintiff, and is due him for publishing said notice, the sum of $ 2,669.50. The second count in the petition is for the publication of the tax sale notice after decree, and is couched in like terms to the first count, except as to the time of publication and the amount due. Both counts allege the purchase of several hundred parcels of real estate by the defendant at the sale made under the notice and decree, and the realization of a large amount of money by reason of the same.

This can hardly be said to be an action upon contract. We think it rather to be an action for the reasonable value of the services performed. But the defendant contends that the plaintiff cannot recover in this case as upon an implied contract, because the treasurer had no authority to make the contract, and that, if the treasurer was not authorized to make the contract, then no liability can attach against the county upon any ground of implied contract; that all persons dealing with officers or agents of counties are bound to ascertain the limits of their authority or power as fixed by the statute or the organic law, and are chargeable with the knowledge of such limits, and that no estoppel can be created by the acts of such agent or officers in excess of their statutory powers, citing Hall v. Board of County Comm'rs, 30 Minn. 68, 14 N.W. 263; Hampton v. Commissioners, 4 Idaho 646, 43 P. 324; Bartholomew v. Lehigh County, 148 Pa. 82, 23 A. 1122; Endion Improvement Co. v. Evening Telegram Co., 104 Wis. 432, 80 N.W. 732, and other cases.

The plaintiff on his part maintains that a distinction may be drawn between the principle of the cases above referred to and the instant case. He concedes that, where a public official has no authority under any conditions to request the performance...