Mittry v. Bonneville County

• Decision Date: 27 November 1923
• Citation: 222 P. 292,38 Idaho 306
• Parties: S. K. MITTRY and GEORGE MITTRY, Copartners Doing Business Under the Name of the NORTH PACIFIC CONSTRUCTION COMPANY, Respondent, v. BONNEVILLE COUNTY, IDAHO, Appellant
• Court: Idaho Supreme Court

222 P. 292

38 Idaho 306

S. K. MITTRY and GEORGE MITTRY, Copartners Doing Business Under the Name of the NORTH PACIFIC CONSTRUCTION COMPANY, Respondent, v. BONNEVILLE COUNTY, IDAHO, Appellant

Supreme Court of Idaho

November 27, 1923

COUNTY INDEBTEDNESS-CONSTITUTIONAL AND STATUTORY LIMITATIONS-CLAIM IN EXCESS OF-ACTION ON.

1. When, by reason of the constitution and statutes, a county is forbidden to incur indebtedness for a certain purpose without the authority of an election and the people at an election authorize the issuance of bonds in a certain amount, the commis- sioners cannot incur a valid indebtedness for that purpose in excess of that amount.

2. In such case no action lies against the county on a claim in excess of the amount authorized by the people.

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. Robert M. Terrell, Judge.

Action on claim against county. Judgment for plaintiff. Reversed.

Judgment reversed, with costs to appellant.

C. E Crowley and O. A. Johannesen, for Appellant.

A complaint against a municipal corporation, seeking to establish the liability of the corporation, is demurrable unless it states all the facts necessary to make the alleged liability complete. (Waltham v. Town of Mullaly, 27 Neb. 483, 43 N.W. 252; Gilligan v. Town of Grattan, 63 Neb. 242, 88 N.W. 477; Town of Clearwater v. Town of Garfield, 65 Neb. 697, 91 N.W. 496.)

The erection of a courthouse is not an ordinary or necessary expense authorized by the general laws of the state. (Bannock County v. Bunting, 4 Idaho 156, 37 P. 277; Ball v. Bannock County, 5 Idaho 602, 51 P. 454.)

All who contract with a municipal corporation are charged with notice of the extent of its powers, and of the powers of its officers and agents with whom they contract. (McBean v Bernardino, 96 Cal. 183, 31 P. 49; McQuillin, Mun Corp., p. 4104, par. 1902.)

A county as a municipal corporation cannot by its acts ratify an indebtedness incurred in direct violation of the constitution, and no estoppel can be invoked against the county because of acceptance of the work, or on the ground of quantum meruit. (McNutt v. Lemhi County, 12 Idaho 63, 84 P. 1054; School Dist. v. County, 30 Idaho 400, 164 P. 1174; Quinby v. Consumers' Trust Co., 140 F. 362.)

Contracts or indebtedness made by municipal corporations in excess of the debt limit are at least invalid as to the extent of the excess. (McQuillin, Mun. Corp., sec. 2239, Supp. 1920, vol. 8; 28 Cyc. 1560; 19 R. C. L., sec. 284, p. 987; Miller v. Ammon, 145 U.S. 421, 12 S.Ct. 884, 36 L.Ed. 759, and cases cited.)

Otto E. McCutcheon, for Respondent.

It was not necessary for plaintiff to allege that the contract was not ultra vires. (5 McQuillin, Mun. Corp., sec. 2495, p. 5180; Richmond County Society, etc., v. New York, 73 A.D. 607, 77 N.Y.S. 41.)

Obligations incurred subsequently to respondent's contract are immaterial. (Van Dusen v. State, 11 S.D. 318, 77 N.W. 201; 1 Abbott, Mun. Corp. 294.)

Substantial compliance with statutory and constitutional provisions is sufficient. (Dunbar v. Board of Commrs., 5 Idaho 407, 49 P. 409.)

It is doubtful whether there are any sufficient allegations of error in the assignments. (Newport Water Co. v. Kellogg, 31 Idaho 574, 174 P. 602; C. S., sec. 7170.)

MCCARTHY, J. Budge, C. J., and Dunn, William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

MCCARTHY, J.

This is an action against appellant county to recover the balance of the contract price for the erection of a courthouse. The complaint alleges that the respondent copartnership and appellant county entered into a written contract by which the former agreed to erect a courthouse for the latter for the contract price of $ 152,525; that said building was erected and completed in accordance with the contract and was accepted by the architects; that in accordance with a provision of the contract authorizing such alterations as might be ordered by the architect, certain alterations were made at a cost of $ 6,816.73, making the total cost $ 159,341.73; that appellant has paid respondent $ 140,461.08, leaving a balance of $ 18,880.65; that respondent presented a claim for this balance to the board of county commissioners, which was rejected. Within the six months allowed by the statute respondent sued for the balance. To this complaint appellant demurred generally and specially. It also answered alleging that the contract was ultra vires and void under the provisions of Const., VIII, 3, and C. S., secs. 3463 and 3464. These questions are also raised by the affirmative defense. The facts alleged in that regard are as follows: The people of appellant county voted bonds in the amount of $ 250,000 for procuring a courthouse site and building a courthouse. $ 40,000 of said fund was used for a site. Respondent's contract covered only part of the work of erecting the courthouse and other contracts were let covering other parts. The total amount of these contracts exceeded the amount left of the $ 250,000, which had been voted by the people. By reason of these facts appellant had no funds available for the payment of the balance of the contract price. The court found that the contract was let, the work and alterations were completed in accordance with the contract, and the full contract price, including the alterations, was $ 159,341.73. As to the validity of the contract and claim the court made the following finding:

"That at the time the said contract was made and entered into by the plaintiffs and the defendant, and delivered to the plaintiffs, there was in the courthouse construction fund of said County out of which the expenditures to be made under the terms of said contract, were to be paid, the sum of $ 167,810.00, all of which was unappropriated and no contracts had been made by defendant payable out of said unappropriated balance of said fund; that said sum had been raised through the sale of bonds of the said County, authorized by vote of the qualified electors of said County for the purpose; and that all formalities in respect to advertising for bids and letting said contract were complied with prior to the execution and delivery of said contract."

Respondent had judgment for the balance of $ 18,880.65, with interest, from which this appeal is taken.

Appellant assigns the overruling of the demurrer as error, claiming the complaint was insufficient because it did not negative the idea that the contract was in violation of the constitutional and statutory provisions above mentioned. The court did not err in this respect. These matters were affirmative defenses and properly treated as such.

Specifications of error numbered 12, 13, 14 and 15 deal with rulings of the court as to the admission and exclusion of evidence. We find no reversible error here.

The vital question in the case is whether the evidence is sufficient to support the finding that there was sufficient money available, properly appropriated, for the payment of respondent's claim at the time it was presented. Respondent contends that this question cannot be considered, because appellant does not properly specify in its brief the particulars in which the evidence is insufficient. While we do not commend the form in which the question is presented, yet we think that, in substance and effect, the specifications of error in the findings may be considered as specifications of the insufficiency of the evidence.

The facts shown by the evidence are as follows: On June 3, 1919 the people of appellant county at an election authorized the issuance and sale of $ 250,000 of county bonds to build a courthouse and jail. These were sold at a premium of $ 3,175. Eighty-five dollars was added to the fund through the auction sale of some county property. The total available was thus $ 253,260. Approximately $ 12,500 was paid the architects. Thirty-one thousand...