St. Anthony & Dakota Elevator Co. v. Martineau
| Decision Date | 16 May 1915 |
| Docket Number | 1915 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Rolette County, C. W. Buttz, J.
From an order granting a new trial, plaintiff appeals.
Affirmed.
H. E Plymat and Mercer, Swan, & Stinchfield, for appellant.
The allowance of the accounts as shown by the certified copies of the allowance of the bills was absolute; the warrants on their face are not payable out of such special assessments but out of "any money in the treasury not otherwise appropriated." This being so, the allowance and the warrants constitute general debts of the city within the meaning of the statutes limiting the amount of indebtedness which may be incurred. 1 Abbott, Mun. Corp. p. 336.
Where instruments are issued by officers of a municipality acting as such, and show on their face an absolute liability, and contain an express promise to pay, a municipal indebtedness is created, and if this is in excess of the debt limit as fixed by statute, such contracts are void, and the officers are individually liable. Fowler v. Superior, 85 Wis 411, 54 N.W. 800; Sage v. Brooklyn, 89 N.Y. 190; United States v. Ft. Scott, 99 U.S. 152, 25 L. ed 348; United States v. County Court, 96 U.S. 211, 24 L. ed. 628; Wyandotte v. Zeitz, 21 Kan. 649; State v. Fayette County, 37 Ohio St. 526; Argenti v. San Francisco, 16 Cal. 256.
The warrants contained a written agreement for general indebtedness. The minutes of the board allowing the claims of plaintiff and others are the best evidence. Abbott, Mun. Corp. 1452.
The acts of Bolstad, claimed as a defense, were not plaintiff's acts, and his knowledge of the facts and circumstances cannot be imputed to plaintiff. He was not acting for plaintiff. Ft. Dearborn Nat. Bank v. Seymour, 71 Minn. 81, 73 N.W. 724; Robertson Lumber Co. v. Anderson, 96 Minn. 527, 105 N.W. 972; 10 Cyc. 1053, 1054; E. S. Woodworth & Co. v. Carroll, 104 Minn. 65, 112 N.W. 1054, 115 N.W. 946.
The statute in question is not a penal statute. The liability under the statute is not imposed as for an offense against the public. 16 Enc. Pl. & Pr. 231, 232; Huntington v. Attrill, 146 U.S. 657, 664, 667, 36 L. ed. 1123, 1127, 1128, 13 S.Ct. 224.
The test as to whether a law is penal is whether the wrong sought to be redressed is a wrong to the public or to an individual. Huntington v. Attrill, supra; 6 Words & Phrases, p. 5269; Nebraska Nat. Bank v. Walsh, 68 Ark. 433, 82 Am. St. Rep. 301, 59 S.W. 952; 25 Cyc. 1052.
Section 1603 of the statutes is intended to hold the officer who violates the statute liable for the performance of the contract. Nebraska Nat. Bank v. Walsh, 68 Ark. 433, 82 Am. St. Rep. 301, 59 S.W. 952.
An agent is individually liable when he exceeds his authority. The same principle prevails here. Rev. Codes 1905, § 5791, Comp. Laws 1913, § 6359; 2 Morawetz, Priv. Corp. § 908; 1 Am. & Eng. Enc. Law, 2d ed. 1124; Huntington v. Attrill, 146 U.S. 657, 664, 36 L. ed. 1123, 1127, 13 S.Ct. 224; Atlanta v. Chattanooga Foundry & Pipeworks, 64 L.R.A. 721, 61 C.C.A. 387, 127 F. 23; Brady v. Daly, 175 U.S. 148, 44 L. ed. 109, 20 S.Ct. 62; Flowers v. Bartlett, 66 Minn. 213, 68 N.W. 976.
The liability under this statute is not imposed by way of punishment, but is only an additional civil remedy given to a private individual by reason of a private injury inflicted, and this liability is measured only by the extent of that private injury. American Credit-Indemnity Co. v. Ellis, 156 Ind. 212, 59 N.E. 679; Brown v. Clow, 158 Ind. 403, 62 N.E. 1006; Neal v. Moultrie, 12 Ga. 104; Hargroves v. Chambers, 30 Ga. 580; Woolverton v. Taylor, 132 Ill. 197, 22 Am. St. Rep. 521, 23 N.E. 1007.
Defendant by stipulation waived all objection to trial by the court under the so-called Newman act, and it was improper for the trial court upon motion for new trial to consider the question as to whether or not the case was properly triable under such act. All evidence should have been received. Rev. Codes 1905, § 7229, Comp. Laws 1913, § 7846; Erickson v. Citizen's Nat. Bank, 9 N.D. 81, 81 N.W. 46; First Nat. Bank v. Merchants' Nat. Bank, 5 N.D. 161, 64 N.W. 941; Otto Gas Engine Works v. Knerr, 7 N.D. 195, 73 N.W. 87; Peckham v. Van Bergen, 8 N.D. 595, 80 N.W. 759; Hagen v. Gilbertson, 10 N.D. 546, 88 N.W. 455; 24 Cyc. 160; Averill Coal & Oil Co. v. Verner, 22 Ohio St. 379; Bonewitz v. Bonewitz, 50 Ohio St. 373, 40 Am. St. Rep. 671, 34 N.E. 334; Beattie v. David, 40 N.J.L. 102; Moore v. Hinnant, 90 N.C. 163; Pardridge v. Ryan, 134 Ill. 247, 25 N.E. 627.
The question here presented rests upon the same general principles of waiver and estoppel. Newcomb v. Wood, 97 U.S. 581, 24 L. ed. 1085; 2 Cyc. 670, 683 and cases cited; DeLanney v. Western Stock Co., 19 N.D. 630, 125 N.W. 499; 2 Century Dig. 1557, et seq. and cases therein cited; 21 Enc. Pl. & Pr. 664; 29 Cyc. 944; 14 Enc. Pl. & Pr. 873.
Only such grounds as are stated can be considered by the lower court on the hearing of a motion, or upon appeal. Kaiser v. Dalto, 140 Cal. 167, 73 P. 828; Nye v. Kahlow, 98 Minn. 81, 107 N.W. 733; Colby v. McDermont, 6 N.D. 495, 71 N.W. 772; Gagnier v. Fargo, 12 N.D. 219, 96 N.W. 841; Tootle v. Petrie, 8 S.D. 19, 65 N.W. 43; Franz Falk Brewing Co. v. Mielenz Bros. 5 Dakota 136, 37 N.W. 728; De Laney v. Western Stock Co., 19 N.D. 630, 125 N.W. 499.
The judgment for plaintiff in the lower court was amply supported by the evidence, and by reason of the attitude of the trial judge upon the motion for new trial, the usual presumption as to the propriety and correctness of the order does not exist. He was not the judge who tried the case. 29 Cyc. 1009; citing Roche v. District of Columbia, 18 Ct. Cl. 217; Braithwaite v. Aiken, 2 N.D. 57, 49 N.W. 419; Tyler v. Haggart, 19 S.D. 167, 102 N.W. 682; Northwestern Port Huron Co. v. Zickrick, 22 S.D. 89, 115 N.W. 525; Wallace v. Wallace, 26 S.D. 229, 128 N.W. 143; Spackman v. Gross, 25 S.D. 244, 126 N.W. 389.
William Bateson and Middaugh, Cuthbert, Smythe, & Hunt, for respondent.
Where findings of fact and conclusions of law and an order for judgment are not filed until after the expiration of the term of the trial judge who made them, judgment entered on them is a nullity. Crane v. First Nat. Bank, 26 N.D. 268, 144 N.W. 96.
The case was mistried in the trial court. It cannot be tried here de novo. This appeal should be dismissed, and the case retried in the lower court. Rev. Codes 1905, §§ 7009, 7229, Comp. Laws 1913, §§ 7608, 7846; Whitney v. Ritz, 24 N.D. 576, 140 N.W. 676; Hagen v. Gilbertson, 10 N.D. 546, 88 N.W. 455; Otto Gas Engine Works v. Knerr, 7 N.D. 195, 73 N.W. 87; First Nat. Bank v. Merchants' Nat. Bank, 5 N.D. 161, 64 N.W. 941; Peckham v. Van Bergen, 8 N.D. 595, 80 N.W. 759; Erickson v. Citizen's Nat. Bank, 9 N.D. 81, 81 N.W. 46; Geils v. Fluegel, 10 N.D. 211, 86 N.W. 712; Barnum v. Gorham Land Co., 13 N.D. 359, 100 N.W. 1079; Laffy v. Gordon, 15 N.D. 282, 107 N.W. 969; American Case & Register Co. v. Boyd, 22 N.D. 166, 133 N.W. 65; Umsted v. Colgate Farmers' Elevator Co., 18 N.D. 309, 122 N.W. 390.
Section 1603 of our Revised Codes is unconstitutional in so far as it imposes a penalty, forfeiture, or liability upon private individuals, as it violates § 61 of our Constitution. Divet v. Richland County, 8 N.D. 65, 76 N.W. 993; Richard v. Stark County, 8 N.D. 392, 79 N.W. 863; Laws of 1895, chap. 25; State ex rel. Standish v. Nomland, 3 N.D. 427, 44 Am. St. Rep. 572, 57 N.W. 85; State ex rel. Erickson v. Burr, 16 N.D. 581, 113 N.W. 705.
This action is barred by the statute of limitation, not having been commenced within three years after the cause arose. 16 Enc. Pl. & Pr. 232; Hudson v. Granger, 23 Misc. 401, 52 N.Y.S. 10; State v. Hardman, 16 Ind.App. 357, 45 N.E. 345; Butler v. Butler, 62 S.C. 165, 40 S.E. 138; Lagler v. Bye, 42 Ind.App. 592, 85 N.E. 36; Corning v. McCullough, 1 N.Y. 47, 49 Am. Dec. 287; Aldrich v. McClaine, 45 C.C.A. 631, 106 F. 791; Nebraska Nat. Bank v. Walsh, 68 Ark. 433, 82 Am. St. Rep. 301, 59 S.W. 952; Merchants' Bank v. Bliss, 35 N.Y. 412; Re Warren, 52 Mich. 557, 18 N.W. 356; Globe Pub. Co. v. State Bank, 41 Neb. 175, 27 L.R.A. 854, 59 N.W. 683; Diversey v. Smith, 103 Ill. 378, 42 Am. Rep. 14.
The statute in question creates a forfeiture merely. There is a distinction between public and private corporations as regards penalties and forfeitures. Irvine v. McKeon, 23 Cal. 472; Gadsden v. Woodward, 103 N.Y. 242, 8 N.E. 653; State Sav. Bank v. Johnson, 18 Mont. 440, 33 L.R.A. 552, 56 Am. St. Rep. 591, 45 P. 662; Sturges v. Burton, 8 Ohio St. 215, 72 Am. Dec. 582; Clough v. Rocky Mountain Oil Co., 25 Colo. 520, 55 P. 809; Jenet v. Albers, 7 Colo.App. 271, 43 P. 453; Gregory v. German Bank, 3 Colo. 334, 25 Am. Rep. 760; Thomp. Corp. 2d ed. § 1355, and those following; Dill. Mun. Corp. 4th ed. § 236.
The indebtedness of the village of St. John to plaintiff was not one requiring a general taxation, but was payable out of the proceeds of special assessments to which plaintiff agreed to look. Rev. Codes 1905, §§ 2880, 2899, Comp. Laws 1913, §§ 3877, 3905; 1 Dill. Mun. Corp. 4th ed § 447; 28 Cyc. 1043, 1057; Soule v. Seattle, 6 Wash. 315, 33 P. 384; Park Ridge v. Robinson, 198 Ill. 571, 92 Am. St. Rep. 276, 65 N.E. 104; Quill v. Indianapolis, 124 Ind. 292, 7 L.R.A. 681, 23 N.E. 788; Cason v. Lebanon, 153 Ind. 567, 55 N.E. 768; Thomas v. Olympia, 12 Wash. 465, 41 P. 191; Huntington v. Force, 152 Ind. 368, 53 N.E. 443; Kirsch v. Braun, 153 Ind. 247, 53 N.E. 1082; Claiborne County v. Brooks, 111 U.S. 400, 28 L. ed. 470, 4 S.Ct. 489; East Oakland Twp. v. Skinner, 94 U.S. 257, 24 L. ed. 126; McClure v. Oxford Twp. 94 U.S. 429, 24 L. ed. 129; Wells v. Pontotoc County, 102 U.S. 625, 26 L. ed. 122; Kelley v. Milan, 127...
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