Olmsted & Gillelen v. Hesla

• Decision Date: 30 December 1922
• Docket Number: Civil 2020
• Citation: 211 P. 589,24 Ariz. 546
• Parties: OLMSTED & GILLELEN, a Copartnership, Consisting of FRANK H. OLMSTED and FRANK GILLELEN, Appellants, v. O. A. HESLA, HOMER R. WOOD, WILLIAM LAWLER, J. W. STEWART, J. I. GARDNER, JOHN BIANCONI and JOHN H. ROBINSON; FRANK E. SMITH, as County Treasurer of Yavapai County, Arizona; B. H. SMITH, C. H. HOOKER, R. W. WINGFIELD, H. W. LEWIS and WINCHESTER DICKERSON, as Members of Yavapai County Highway Commission, and A. N. JONES, Secretary of Said Commission, Appellees
• Court: Arizona Supreme Court

211 P. 589

24 Ariz. 546

OLMSTED & GILLELEN, a Copartnership, Consisting of FRANK H. OLMSTED and FRANK GILLELEN, Appellants, v. O. A. HESLA, HOMER R. WOOD, WILLIAM LAWLER, J. W. STEWART, J. I. GARDNER, JOHN BIANCONI and JOHN H. ROBINSON; FRANK E. SMITH, as County Treasurer of Yavapai County, Arizona; B. H. SMITH, C. H. HOOKER, R. W. WINGFIELD, H. W. LEWIS and WINCHESTER DICKERSON, as Members of Yavapai County Highway Commission, and A. N. JONES, Secretary of Said Commission, Appellees

Civil No. 2020

Supreme Court of Arizona

December 30, 1922

APPEAL from a judgment of the Superior Court of the County of Yavapai. A. C. Lockwood, Judge. Affirmed.

Messrs Norris & Norris, Messrs. Anderson, Gale & Nilsson and Mr Robert McMurchie, for Appellants.

Mr John A. Ellis, Messrs. O'Sullivan & Morgan and Mr. John L. Sullivan, for Appellees.

OPINION

ROSS, C. J.

This action involves the power of the highway commission of Yavapai county, Arizona, to employ the appellants as designing, consulting and supervising engineers of the construction and improvement of the highways of the said county, authorized by an election held on May 8, 1920, at which bonds in the amount of $1,500,000 were voted to provide funds for such construction and improvement.

The contract employing appellants was entered into between them and the highway commission on June 16, 1921, covering the whole period of the construction and improvement contemplated, and obligated the highway commission to pay appellants for their services four per centum of the $1,500,000 voted, or $60,000, to be paid $2,500 upon the signing of the agreement, $2,500 each on the first day of August and September, 1921, and the remainder monthly pro rata as the construction work progressed.

The terms of office of four of the highway commissioners expired September 14th, and of the fifth September 17, 1921, three months after the date of the contract with appellants. It is conceded that the program of construction could not be completed in less than three years. It is obvious that unless the members of the commission should be reappointed most of appellants' services as such engineers would be for and under a commission with an entirely different personnel.

The sole question being the power of the highway commission to enter into such contract upon a motion by the plaintiffs for judgment on the pleadings, the court ordered judgment, and thereby necessarily denied the existence of such power.

The law creating the office of the highway commission is found in chapter 31, Laws of 1917, amended by chapters 2, 63 and 121 Laws of 1919, and therein are prescribed the commission's powers and duties -- powers and duties that had theretofore been conferred upon, and exercised by, the board of supervisors. The members of the highway commission are appointed by the supervisors for terms of two years. The power of appointment arises only after the board on its own motion, or through petition by fifteen per cent of the taxpayers of the county, has determined to submit the question of issuing bonds for the construction or improvement of the county highways. The terms of office of the commissioners automatically end for any one of the following reasons: (1) Failure of the bond issue to carry; (2) completion of the highway program voted; (3) when all the money arising from sale of bonds has been expended.

It is provided that the "commission shall have the powers and shall perform the duties hereinafter set forth." The first "duty" of the highway commission, which must be performed immediately upon their appointment, is to investigate all the county's public highways and the condition of those which in their judgment the greatest public necessity and convenience require to be constructed or improved, and to cause to be prepared maps thereof showing their location, condition, connections, ascertain and determine which of the public highways should be improved, the kind of improvements, and procure an estimate of the costs of such improvement.

To assist the commission in determining the best material to be used, the best and most feasible manner of making such improvements, and to make all necessary surveys and prepare maps of the proposed construction or improvement, the commission is authorized to employ a competent engineer.

The second "duty" of the commission is to make a detailed report at least twenty days before the date fixed for bond election to the board of supervisors with suggestions and recommendations regarding the proposed construction or improvement accompanying the report with copies of map or maps and estimates of cost. This report, without being altered or modified, is required to be published by the board of supervisors at least two weeks before the bond election in a newspaper published in the county -- six times if in a daily; twice if in a weekly. The call for bond election limits the improvement or construction to the report and maps made by the highway commission.

If the bond election carry and the bonds are sold, then other "duties" fall to the highway commission. It is provided, first, that "all work for which said bonds are issued shall be done under the supervision and direction of the highway commission"; second, the commission must determine the character of the work, prepare plans, specifications and profiles thereof, and thereupon advertise for bids, let contracts to lowest responsible bidder, fix contractors' bond and approve it, and, where the work to be done does not exceed $1,000, let it without calling for bids; may reject any and all bids and readvertise for bids for doing any or the whole of said work; and, third, "said commission may employ a secretary and all necessary engineers, inspectors and superintendents to supervise the performance of such contracts or to have charge of the doing of said work, and shall fix their compensation." Section 8.

The "salary" of the commissioners is fixed at $10 per day, they are actually engaged, and they are forbidden any "further or additional compensation." It is provided that the expenses of the commission, traveling and others, actually and necessarily incurred in the discharge of their duties, as also those of the board of supervisors, shall be paid out of the general fund of the county, until there shall be sufficient money in the highway improvement fund, derived from the sale of bonds, with which to pay same, whereupon the general fund of the county shall be reimbursed from the highway improvement fund, and thereafter all expenses of the commission shall be paid out of the highway improvement fund. It is provided that any surplus remaining in the said fund after the completion of the work of improvement shall be passed into the general road fund of the county.

The commissioners are required to give bond to the county for the faithful performance of their duties in amounts fixed by the board of supervisors and approved by the board.

It is the contention of appellants that the commission in entering into the...