Quackenbush v. City of Cheyenne

• Decision Date: 27 July 1937
• Docket Number: 2021
• Citation: 70 P.2d 577,52 Wyo. 146
• Parties: QUACKENBUSH, ET AL v. CITY OF CHEYENNE, ET AL
• Court: Wyoming Supreme Court

70 P.2d 577

52 Wyo. 146

QUACKENBUSH, ET AL v. CITY OF CHEYENNE, ET AL

No. 2021

Supreme Court of Wyoming

July 27, 1937

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Action for declaratory judgment by Clarence Quackenbush and others against the City of Cheyenne and others. From the judgment plaintiff appeals.

Remanded with instructions.

For the plaintiffs and appellants, there was a brief and oral argument by Charles E. Lane of Cheyenne.

The first sale was illegal. The second sale was an attempt to ratify an illegal sale, but an illegal act cannot be ratified. The consideration paid on the first sale was inadequate and there was no consideration paid for the second sale. The participation of the Mayor of Cheyenne in the transaction was violative of the Wyoming statutes. Cheyenne is a charter city operating under a commission form of government. Article VI, Chapter 22, R. S. 1931; Article XIX Page 22, R. S. 1931. The first sale was made without advertising and in violation of law. Section 95-101, R. S. Public officers are prohibited from participating in public contracts. Section 95-101, R. S. 1931. These statutes are mandatory. Tobin v. Sundance, 45 Wyo. 230. The disposition of city property must be in accordance with statutes. Leavenworth v. Rankin, 7 Kan. 357; Haesloop v. Chrleston, 123 S.C. 272; McDonald v. Price, 45 Utah 464; Bank v. City of Creston (Ia.) 231 N.W. 705; South v. Albany, 61 N.Y. 444; State v. Williams (N. C.) 68 S.E. 900; Frisbie Co. v. City of East Cleveland (Ohio St.) 120 N.E. 309; Bartlett v. City of Lowell (Mass.) 87 N.E. 195; 19 R. C. L. 1068; 43 C. J. Sec. 2098, page 1340. The Mayor was a director and stockholder in the Home Builders organization and was precluded from participation in the transaction, which purports to be a contract with the city. Hardy v. Gainesville, 121 Ga. 327; Hardware Co. v. Macon (Miss.) 43 So. 304; Light Company v. Kennett Square, 8 Kulp. 105 (Pa.); Grand Island Company v. West (Nebr.) 45 N.W. 242; Capital Gas Co. v. Young (Cal.) 41 P. 869; Woodward v. City of Wakefield (Mich.) 210 N.W. 322; Cumberland Coal Co. v. Sherman, 30 Barb. (N. Y.) 553; State v. Williams, 153 N.C. 595; Ryan v. Olson (Wis.) 197 N.W. 727. The second sale was an attempted ratification of the first sale. It was unsupported by a consideration and could not be ratified. 19 R. C. L. 1074; Ferle v. Lansing (Mich.) 155 N.W. 591; 3 Page on Contracts No. 1965; Milford v. Milford Water Co., 124 P. 610; Berka v. Woodward (Cal.) 45 L. R. A. 420; Nunemacher v. Louisville, 32 S.W. 1091; Water Company v. San Buenaventura, 65 F. 323. The company was chargeable with knowledge as to what the city could do legally. Johnson County Bank v. City of Creston, 84 A. L. R. 926; Frisbe Company v. City of Cleveland, 98 Ohio St. 120 N.E. 309. Tobin v. Town Council, 45 Wyo. 219 is controlling in principle. The consideration was inadequate. The judgment below was erroneous. It was contrary to law and is not sustained by evidence. The findings of fact and conclusions of law on which it is based are not sustained by evidence. The several deeds executed by the City should be canceled.

For the defendants and respondents, there was a brief and oral argument by Harry B. Henderson, Jr.

The second sale did not ratify the first sale. Platt v. Schmidt (Wis.) 94 N.W. 345. Section 95-101, W. R. S. 1931 does not apply to any of the acts of the Cheyenne City Council. Fraud must be alleged and proven. The Mayor was not involved in the Home Builders Negotiations. More than a dual capacity must be shown to establish the contention of plaintiffs. Tobin v. Town Council of Sundance (Wyo.) 17 P.2d 666; Ellepson v. Smith (Wis.) 196 N.W. 834; McQuillin, 2d Ed., Vol. 3, page 770. Section 22-619 supersedes Section 95-101, as the latest enactment on the subject, and is included in the commission form of government act. If the charter is not paramount, this section must be applied strictly within its terms. Morrison v. Cottonwood Development Company, (Wyo.) 266 P. 117; Cadwells Estate (Wyo.) 186 P. 499; Allen v. Lewis (Wyo.) 177 P. 433; Ross v. State (Wyo.) 93 P. 299. The latest statute on a given subject will control over the provisions of an earlier statute. Marsh v. Aljoe (Wyo.) 282 P. 1055; Burton v. Coal Company (Wyo.) 107 P. 391; State v. Jay (Wyo.) 260 P. 180; School District No. 3 v. School District No. 2 (Wyo.) 210 P. 562. Cheyenne has never relinquished its charter. Provisions of General Laws were enacted at a later date. The charter does not require advertisement of real estate before sale. It does not prohibit interest of officers in contracts of sale of real estate. Section 22-619 is the only section on interest of public officers that might be applied to this case under the commission form of government. This action does not invalidate the action of the city accepting the bid. Newbold v. Glen, (Md.) 10 A. 242; McGarvey v. Swan, (Wyo.) 96 P. 697. State v. Sheldon (Wyo.) 213 P. 92. The City Charter takes precedence over general laws. McFarland v. City of Cheyenne, 42 P.2d 413; Sylvester v. Web (Mass.) 60 N.E. 495; Kansas City v. Oil Company (Mo.) 41 S.W. 943; State v. Mills, 24 N. J. L. 177; McGee v. Walsh (Mo.) 155 S.W. 445; Whitehead v. Vienna (Ga.App.) 73 S.E. 533; Ferguson v. McDonald (Fla.) 63 So. 915; Watts v. State (Okla.) 187 P. 797; Walbridge-Adlinger Company v. Tulsa (Okla.) 233 P. 171. Mayor Allison is not disqualified to vote on the acceptance of bids at public auction. There being no competitive offers, it was a purely ministerial duty. More than a connection with an interested corporation must be shown. City of Fort Wayne v. Ry. Co. (Ind.) 32 N.E. 215; McQuillin (2d Ed.) Vol. 2, p. 446; Hodge v. Princeton (Ky.) 13 S.W.2d 491; State v. Debnam (N. C.) 146 S.E. 857; Tuscan v. Smith (Me.) 153 A. 289. Allowance of the claim for $ 65,886.16 filed by the Home Builders Company was a legal, equitable and proper disbursement of the City. 27 R. C. L. 432, 636; A. & E. Ann. Cases, Vol. 10, p. 562 (Note); Marshall v. Caldwell, 41 Cal. 611; Clarke v. Peins, 12 Gratt (Va.) 98; Moore v. Cariglietti, 288 Ill. 143; Seaman v. Big Horn Canal Association, 29 Wyo. 514; Bank v. Frantz, 33 Wyo. 326; Chesney v. Valley Livestock Company, 34 Wyo. 378.

For defendants and appellees, there was also a brief and oral argument by William E. Mullen of Cheyenne.

The petition of plaintiffs is indefinite as to the relief sought in this action. The Home Builders Company was not organized for profit. It was a public-spirited movement by local business men to construct some homes for newly-arrived employees of United Air Lines. The Company purchased sixteen lots from the City and immediately placed improvements thereon, and then disposed of the lots under purchase contracts. After the Home Builders Company and its grantees acquired possession of the real estate, the validity of the sale by the City was attacked by plaintiffs, on the ground that the City had not first advertised for sealed bids under Section 22-148, R. S. 1931. The Home Builders Company and its grantees, none of whom are parties to this action, are in the position of occupying claimants, under Sec. 89-3908, R. S. 1931. Brewer v. Folsom Brothers Company (Wyo. ) 5 P.2d 283. Defendants having decided that there was doubt as to the validity of the sale of the lots, proceeded to advertise the lots for a resale under sealed bids, and Home Builders and some of its grantees were the only bidders at the second sale. The title of the purchasers at the second sale cannot be defeated without joining them as defendants herein. Nicholson v. Kingery (Wyo.) 261 P. 122. The contentions of plaintiffs with reference to the Mayor's connection with this transaction are without merit. Farmers State Bank v. Haun (Wyo.) 22 P. 45, rehearing denied 31 Wyo. 201, 224 P. 856. The trial court held in substance that the first sale was void and that the second sale was valid, and passed a fee simple title to the purchasers; also that plaintiffs had no right or interest in the property. The City followed the statute in making the second sale of the lots, and this the trial court found to be legal.

BLUME, Chief Justice. KIMBALL, J., concurs. RINER, J., concurs in the result.

OPINION

BLUME, Chief Justice.

This is an action brought on April 11, 1936, by taxpayers against the City of Cheyenne, its mayor and commissioners, for a declaratory judgment as to the validity of transactions hereinafter mentioned. The trial court declared them valid, and an appeal has been taken by the plaintiffs, appellants herein, from the judgment entered herein.

The petition discloses the following facts: The plaintiffs are citizens and taxpayers of the City of Cheyenne. The City is a municipal corporation, operating under a special charter, but also under the commission form of government, and the defendants are the Mayor and the Commissioners of the City. The Home Builders Company is a private corporation, organized for gain on August 23, 1935. Archie Allison, the Mayor, was a director and stockholder in the corporation. On August 26, 1935, the Mayor and Commissioners of the City sold sixteen lots in the Airport Addition to the City of Cheyenne to the Home Builders Company for the sum of $ 4150.00, or a little over $ 250 per lot, and made and executed a deed to the purchaser. Thereafter brick houses and frame garages were erected on the lots by the purchaser above named, of the value of approximately sixty-five thousand dollars, and Archie Allison, the Mayor had the contracts for the erection of these buildings. Thereafter, and commencing on February 26, 1936, the City offered the above mentioned lots for sale at public auction. On March 19, 1936, bids for the lots were received, pursuant to advertisement, and the Home Builders...