Reed v. Heglie

• Decision Date: 08 February 1910
• Citation: 19 N.D. 801,124 N.W. 1127
• Parties: REED v. HEGLIE et al., Tri-County Drain Com'rs.
• Court: North Dakota Supreme Court

19 N.D. 801

124 N.W. 1127

REED

v.HEGLIE et al., Tri-County Drain Com'rs.

Supreme Court of North Dakota.

Feb. 8, 1910.

Syllabus by the Court.

The board of “drain commissioners” of any county in this state is a department of the said county, with power to draw warrants upon a special fund in the county treasury. An action will not lie against it on its contract. The remedy in the courts is by mandamus.

This rule applies to the boards of drain commissioners of two or more counties, when acting together for the laying out and constructing of a drain through two or more counties.

The complaint must show the representative character in which the defendant is sued.

The proper disposition of a bill presented to a board of drain commissioners is to audit it and, if allowed, issue a warrant on the proper drain fund in payment of such bill.

The demurrer in this case was properly sustained.

Appeal from District Court, Ransom County; Allen, Judge.

Action by W. W. Reed against P. O. Heglie and others, Tri-County Drain Commissioners of Richland, Sargent, and Ransom Counties. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.W. W. Reed (S. D. Adams, of counsel), for appellant. Ink & Wallace, A. M. Kvello, and E. W. Bowen, for respondents.

CARMODY, J.

This is an action brought by plaintiff against the defendants as Tri-County Drain Commissioners of Richland, Sargent, and Ransom counties, to recover for services claimed to have been rendered said board. The complaint, as far as material here, is as follows: “(1) That the defendant board is indebted to the plaintiff in the sum of $14, as an unpaid balance due for work, labor and services rendered by plaintiff to defendant and at its request, as an engineer on that portion of Long Drain No. 1 which lies in Sargent county, North Dakota; (2) that the said amount became due and payable on the 12th day of June, 1907; that the bill for the same was presented on said 12th day of June, 1907; that the same was not paid nor has it since been paid”-to which complaint the defendants interposed the following demurrer: “Come now the defendants in the above-entitled action and demur to the complaint of the plaintiff upon the grounds and for the following reasons, to wit: (1) That there is a defect of parties defendant. (2) That the complaint does not state facts sufficient to constitute a cause of action. (3) That the court has no jurisdiction of the persons of the defendants”-which demurrer was sustained by the district court. From the order sustaining the demurrer, the plaintiff appeals to this court. The principal point discussed by the attorneys is as to whether the drain commissioners can be sued in an action of this kind.

The board of county commissioners of any organized county in this state is authorized to appoint, on the petition of any person interested, three freeholders of the county as a board of drain commissioners of such county. Any person appointed as a member of the board of drain commissioners shall, within10 days after his appointment, qualify by filing an oath of office and a bond in the office of the county auditor. Upon petition, the board of drain commissioners is authorized to lay out and construct a drain and cause a survey of the line thereof to be made by a competent surveyor. The drains laid out and constructed are named and numbered. The lands benefited by the construction of each drain are assessed for the cost thereof, including all expenses connected therewith. The drain taxes so assessed shall be collected by the county treasurer, and all moneys so collected shall be credited to the drain fund to which they belong, and the county treasurer shall be the treasurer of such drain funds. Payment of all expenses and costs of locating and constructing any drain shall be made by the board of drain commissioners, issuing warrants in such amounts and to such persons as by such board may be found due. The boards of drain commissioners of two or more counties in this state are authorized to construct or extend a drain through or into two or more counties in this state and to construct and maintain the same, on petition presented to the several boards of drain...