Newbery v. Fox
| Decision Date | 16 June 1887 |
| Citation | 33 N.W. 333,37 Minn. 141 |
| Parties | Henry H. Newbery v. Daniel P. Fox, impleaded, etc |
| Court | Minnesota Supreme Court |
The plaintiff, suing for himself and all other citizens and taxpayers of the town of Taylor's Falls, brought this action in the district court for Chisago county, to restrain the defendant Fox from enforcing a judgment obtained by him by default against the town of Taylor's Falls, and to restrain the town and its officers from paying such judgment and from paying the defendant Fox anything upon the alleged contract upon which the judgment was rendered, the complaint alleging that the judgment was obtained through the connivance of the officers of the town.
The defendant Fox appeals from an order by Crosby, J., sustaining a demurrer to his separate answer. The answer, among other matters, alleges that a contract was made between the defendant Fox and the town of Taylor's Falls for the grading of a street, that the defendant Fox duly performed the contract, and that the work was accepted by the town, and admits that no order had been made by the town council directing the property-owners fronting or adjacent to the street graded to grade the same prior to the making of the contract with the defendant Fox. The answer further alleges that the defendant Fox did the work in good faith, and was told by the members of the town council, before he did the work, that he had a good and valid contract.
F. B Dorothy, for appellant, cited Auerbach v. Le Sueur Mill Co., 28 Minn. 291, 298; Holt v. Winfield Bank, 25 F. 812; Brady v. Mayor, 20 N.Y. 312; Kearney v. Andrews, 10 N.J.Eq. 70; Martin v. Nashville Bldg Assn., 2 Cold. 418; Kearney v. City of Covington, 1 Met. (Ky.) 339; Mayor v. Butler, 1 Barb. 325 338; City of Camden v. Mulford, 26 N. J. Law, 49; Mayor v. Furze, 3 Hill, 612; Conrad v. Trustees, 16 N.Y. 158; Prather v. City of Lexington, 13 B. Mon. 559; Cowen v. Village of West Troy, 43 Barb. 48, 52; Brady v. Mayor, 1 Barb. 584; Partridge v. Badger, 25 Barb. 146; Sharp v. Mayor, 40 Barb. 256; Little Rock v. Nat. Bank, 98 U.S. 308; Gas Co. v. San Francisco, 9 Cal. 453; Peterson v. Mayor, 17 N.Y. 449; State v. City of Buffalo, 2 Hill, 434; City of Galena v. Corwith, 48 Ill. 423; Nash v. City of St. Paul, 8 Minn. 143, (172;) 5 Am. Law Rev. 272; Wade v. Corporation of Brantford, 19 U. C. Q. B. 207; Dillon, Mun. Corp. §§ 448, 458, 935, 936, 938, 968; Green's Brice's Ultra Vires, 273-275, 729, note a.
H. N. Setzer, for respondent.
The only point presented by the appellant for decision is as to whether a contract, entered into in 1885, between the town council of the municipal corporation the town of Taylor's Falls and the defendant Fox, for the opening and grading of certain streets by Fox, was ultra vires, and whether the municipality should be heard to interpose that defence to an action by the other party to recover upon the contract after it had been performed. The corporation was empowered by its charter (Sp. Laws 1873, c. 2, and Sp. Laws 1881, (Ex. Sess.) c. 44) to levy special assessments for such improvements upon the real estate in front of or adjacent to which the same should be made. The act of 1881 repealed certain sections of the prior act providing for the assessing of the cost of such improvements in the first instance upon the property deemed to be benefited thereby; and by section 10 of the later act it was provided that the town council should "order said improvements to be made by the owners of real estate, or occupants of such real estate, in front or adjacent to where said improvements are so ordered." Section 12 provides that such owners or occupants "shall make, or cause to be made, said improvements at their own cost and charges;" and further provides that, in case of their default, the council may cause the improvement to be made, and assess the expense upon the property. It is not controverted that the statute required that an order should have been made for the adjacent proprietors to make the improvement, and opportunity given them to do so, before the council could rightfully let a contract for the doing of it, and it is admitted that this was not done. Not only was the party entering into this contract legally chargeable with notice that by the public charter the authority of the council was thus restricted, (McDonald v. Mayor, 68 N.Y. 23; Schumm v. Seymour, 24 N.J.Eq. 143,) but the allegation in the complaint that the plaintiff warned the defendant that the contract was void before he commenced to perform it, is admitted by the answer.
The doctrine of ultra vires has, with good reason, been...
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