Seaman v. Cap-Au-Gris Levee Dist.

• Decision Date: 31 March 1909
• Citation: 219 Mo. 1,117 S.W. 1084
• Parties: SEAMAN v. CAP-AU-GRIS LEVEE DIST.
• Court: Missouri Supreme Court

117 S.W. 1084

219 Mo. 1

SEAMAN v. CAP-AU-GRIS LEVEE DIST.

Supreme Court of Missouri, Division No. 1.

March 31, 1909.

1. DRAINS (§ 17)—DRAINAGE DISTRICT—EMPLOYMENT OF COMMISSIONER AS ENGINEER—INVALIDITY OF CONTRACT.

Inasmuch as the duties of the commissioners of a drainage district organized under Rev. St. 1899, §§ 8318-8345 (Ann. St. 1906, pp. 3935-3947), are enjoined by such article on all three and not on two of them only, which section 8325 provides shall constitute a quorum, and it is intended that the scheme of drainage and the plan of its construction shall have the indorsement of all the members, and it is their duty to see that work is done according to the plans and specifications filed with the county court, and accept the work on completion, and section 8336 expressly provides that they shall not during their term be interested, directly or indirectly, in any contract for the construction of any ditch, drain, or levee, or in the wages or supplies to men or teams employed, for two members to employ the third as engineer under the authority conferred by sections 8328 and 8335, as to surveys, profiles, plans and specifications, etc., would not only defeat the general intent of the law as to the exercise of the discretion of "three competent persons" required to be appointed commissioners, but would violate the absolute prohibition of such employment in section 8336.

2. DRAINS (§ 17)—EMPLOYMENT OF COMMISSIONER AS ENGINEER—INVALIDITY OF CONTRACT—RIGHT TO COMPENSATION.

That a drainage district received the benefit of services of one of the commissioners employed by the others as engineer in violation of the absolute prohibition of Rev. St. 1899, § 8336 (Ann. St. 1906, p. 3944), would not prevent the district from repudiating the contract and declining to pay him therefor or estop it to plead its invalidity in defense to an action by him for compensation.

Appeal from Circuit Court, Lincoln County.

Action by W. J. Seaman against the Cap-Au-Gris Levee District. From a judgment for plaintiff, defendant appealed to the St. Louis Court of Appeals, which transfers the cause to the Supreme Court. Reversed.

This suit was brought in the circuit court of Lincoln county, by the plaintiff against the defendant on 16 orders or warrants issued by it, payable to him or order, in payment of services performed by him as commissioner and engineer in the construction of certain levees and ditches in said drainage district.

The petition contained 16 counts, each of which alleges the incorporation of the defendant, substantially, as in the first count; that on the 6th day of July, A. D. 1896, by order of its board of commissioners, and by its legally constituted officers, to wit, William Brimm, president of its board of commissioners, and W. J. Seaman, secretary, defendant made, executed, and delivered to this plaintiff its negotiable, written obligation directing its treasurer to pay him the sum of $100, which said written obligation or order is herewith filed, and marked "Exhibit A" and which written order or obligation obligated itself to pay to the order of this plaintiff, W. J. Seaman, $100, in words and figures as follows, to wit: "No. 97. Office of the Board of Commissioners of the Cap-Au-Gris Drainage and Levee District. $100.00. To the Treasurer of the Board of Commissioners of the Cap-Au-Gris Drainage and Levee District, Lincoln County, Missouri: Pay to the order of W. J. Seaman, the sum of one hundred dollars for engineering out of any funds in your hands. This warrant bears interest at the rate of six per cent. per annum from date. Given at Winfield, Mo., this 6th day of July, 1896. By order of the board. [Signed] W. Brimm, President. Attest: W. J. Seaman, Secretary." It alleges presentment of order in due time to the treasurer for payment and divers times since, failure and refusal to pay, and demands judgment for the amount with 6 per cent. interest from date of the order. The other counts are in the same form, with the following variations only, occurring in the copy of the orders:

Second count, Exhibit B, No. 98, $100.

Third count, Exhibit C, No. 99, $100.

Fourth count, Exhibit D, No. 100, $100.

Fifth count, Exhibit E, No. 101, $100.

Sixth count, Exhibit F, No. 102, $100.

Seventh count, Exhibit G, No. 103, $100.

Eighth count, Exhibit H, No. 104, $100.

Ninth count, Exhibit I, No. 105, $84, for "expenses."

Tenth count, Exhibit J, No. 106, $55 for "commission fee."

Eleventh count, Exhibit K, No. 140, $12.90, to the "order of Dodge, Cochran & Co. for levee work," dated September 3, 1896, alleging also assignment of the order to plaintiff.

Twelfth count, Exhibit L, No. 208, $100, "for 20 days' engineering," dated September 5, 1896.

Thirteenth count, Exhibit L, No. 209, $100, "for 20 days' engineering," dated September 5, 1896.

Fourteenth count, Exhibit M, No. 210, $31, "for 5 days' engineering and 3 days' commission fees, September 5, 1896.

Fifteenth count, Exhibit N, No. 211, $7.80, for expenses, September 5, 1896.

Sixteenth count, Exhibit O, No. 238, $115.07, "for engineering, commission fees, and expenses," February 20, 1897.

In the answer defendant alleged that it was incorporated under the drainage act approved April 1, 1893 (Laws 1893, p. 188); that W. J. Seaman, named in each of the counts of the petition as secretary of the board of commissioners, and the plaintiff was one and the same person; that engineering set up as the consideration of the order mentioned in the 1st, 2d, 3d, 4th, 5th, 6th, 7th, 8th, 12th 13th, 14th, and 16th counts of the petition was done, if done at all, while plaintiff was one of defendant's board of commissioners, under a pretended contract with said board whereby he was to receive $5 per day; that such contract was illegal, against public policy, unauthorized by law, and in violation of sections 19 and 26 of said act of 1893, and that said orders were without consideration and void. It is further pleaded that said contract was for an amount exceeding $500, and was not let to bidders as required by law. The execution of the order described in count No. 16 was also denied under the oath of the president of the board. Counts Nos. 9, 10, 11, and 15 were not controverted in the answer.

The facts are not disputed, and are as follows:

The defendant drainage district was organized in Lincoln county, Mo., under the laws of 1893, and embraces about 3,300 acres of land on the bottoms of the Mississippi river, in said county; it being the same drainage district involved in the case of State ex rel. v. Wilson (not yet officially reported) 115 S. W. 549. The county court in appointing commissioners for this levee district, as was its duty under the statute, appointed plaintiff, William J. Seaman, as one of the commissioners, and at the same time appointed William Brimm and W. A. J. Sitton as commissioners with him. At a regular meeting of these commissioners, as shown by the evidence, in the judgment of the commissioners it became necessary to appoint a civil engineer to take charge of the construction of the levees and ditches in the district. The plaintiff, as shown by the transcript, not voting himself, was by the other two commissioners elected to the position of engineer. This was done at a regular meeting of the commissioners, and a proper record made thereof. The plaintiff, Mr. Seaman, accepted the position, and took charge of this part of the work in the laying off, construction, building, measuring, and completing the levees in said district, working at the same, as shown by the evidence, some 250 or 300 days. The levee was completed, accepted by the commissioners and by the county court. The assessments for the construction of the levee were made payable by installments, a large part of these installments maturing after the completion of the levee. From time to time as this work was done this plaintiff, as well as all other persons working in any department of the levee construction, would present their accounts to the commissioners, and, for want of cash on hand to pay, the commissioners issued scrip, or these warrants or orders sued on in this case, in payment for the work. Seaman, the commissioner, and this plaintiff, in the course of his work as commissioner and as engineer, received in payment therefor the scrip, orders, or warrants that were sued on in this case and offered in evidence. When the levee was completed it was found that it would require another assessment of some $10,000 to pay the outstanding indebtedness made necessary in the construction of the levee, of which plaintiff's warrants were a part. The commissioners so made their report to the county court, showing the indebtedness of the levee district above the funds on hand arising from the first assessment to pay the same to be about $10,000. The indebtedness by the commissioners was itemized, and included these warrants or orders of plaintiff sued on. The county court on this report of the commissioners ordered an assessment payable in five installments, the first installment payable in July following the assessment, and the others following annually. An appeal was taken to the circuit court, and the circuit court affirmed the judgment of the county court, and the assessments were made. For the lack of funds these warrants have never been paid, hence this suit.

The evidence shows that the work was necessary, that the work was done for a fair price and in a satisfactory manner, and that Seaman in his employment was employed by the other two members of the commission. The evidence further shows that from time to time in the reports made by this commission, and by the commissioners following them, that this indebtedness of plaintiff was recognized and the warrants issued therefor were recognized as a proper indebtedness of the district, and that the orders and judgments both of the county court and the circuit court so held. It was admitted that W. A. J. Sitton, William J. Seaman,...