The Eberhardt Construction Company v. The Board of County Commissioners of The County of Sedgwick

• Decision Date: 07 April 1917
• Docket Number: 21,248
• Parties: THE EBERHARDT CONSTRUCTION COMPANY, Plaintiff, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF SEDGWICK, Defendant
• Court: Kansas Supreme Court

164 P. 281

100 Kan. 394

THE EBERHARDT CONSTRUCTION COMPANY, Plaintiff, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF SEDGWICK, Defendant

No. 21,248

Supreme Court of Kansas

April 7, 1917

Decided January, 1917.

Original proceeding in mandamus.

Writ denied.

SYLLABUS

SYLLABUS BY THE COURT.

1. COUNTY BUILDING--Contract Let--Bonds Illegal--Contract Repudiated by County--Mandamus. Where public officers who have entered into a contract in that capacity refuse to recognize its obligations solely by reason of a mistaken view of a pure question of law, their compliance with it may be enforced by mandamus; but it does not follow that where the controlling body of a municipality, in the exercise of its judgment as to public policy, sees fit to refuse to proceed with a contract, preferring to answer in damages, it can be held to specific performance by a writ of mandamus.

2. BOND ELECTION--Building County Jail--Statutory Notice Required. The statute requiring the notice of a special election to vote bonds for the erection of a county jail to be published in a newspaper "for" thirty days before the time set, is not complied with where the notice is omitted from the last issue of the paper prior to the date named.

3. SAME. The fact that the election was held upon the same day as the state primary does not alter its character as a special election.

4. SAME. The failure to publish the notice of such an election for the full period required by the statute renders the election void.

5. COUNTY BUILDING--Bonds--Election--Power of County Board. The county board has no power to provide for the erection of a jail without a vote of the people, and a contract made under color of an election held without the required notice having been given is unenforceable.

6. BOND ELECTION--Validity--Finding of County Commissioners. The rule that ordinarily the finding of a public body as to the steps taken preliminary to its action is conclusive does not apply to the situation stated.

7. BUILDING CONTRACT -- When Specific Performance Will Not be Enforced. A county can not be required to carry out such a contract on the ground of estoppel resulting from the dealings of the commissioners with the contractor, for the reason that the rights of the public are involved.

C. W. Burch, B. I. Litowich, LaRue Royce, all of Salina, Fred Stanley, Claud Stanley, and B. F. Hegler, all of Wichita, for the plaintiff.

Ross McCormick, county attorney, S. B. Amidon, D. M. Dale, and S. A. Buckland, all of Wichita, for the defendant.

OPINION

MASON, J.:

In June, 1916, the commissioners of Sedgwick county decided that it was desirable to build a jail at a cost of $ 120,000. An election was held at which a majority of those voting declared in favor of issuing bonds for the purpose. In September a contract was entered into with the Eberhardt Construction Company for the building of the jail. Work under the contract was begun by purchasing material and equipment, a part of which was placed upon the ground. Two of the commissioners were succeeded by newly elected officers in January, and in that month the board notified the company that it had canceled the contract, adding that this was done upon the opinion of the county attorney that the election referred to and the acts taken in reliance thereon were without authority of law. The company seeks by mandamus to require the board to carry out the contract. An alternative writ has been issued, and the defendants have filed an answer presenting the contention that even if the contract were valid its performance could not be enforced by mandamus, and that it is void because of a defect in the publication of the notice of the election. The case is submitted upon a motion for judgment on the pleadings.

1. Upon the question of procedure the defendants rely upon a line of decisions to the effect that a municipality will not be compelled by mandamus to perform specifically its ordinary business contracts. (26 Cyc. 291; State v. Mortensen, 69 Neb. 376, 95 N.W. 831.) The plaintiff relies chiefly upon a recent decision of this court in which the contractor was permitted to test the validity of a contract for the building of a bridge by mandamus against the county board for its enforcement. (Bridge & Iron Co. v. Labette County, 97 Kan. 142, 154 P. 230, 98 Kan. 292, 158 P. 8.) It was said in the opinion in that case that the remedy by an action for damages was not fairly adequate--that the profit to accrue to the plaintiff from the building of the bridge could not be definitely ascertained in advance of performance. The specific relief there sought was to require the defendants to close the site of the bridge against traffic and to give the plaintiff possession of the site for the purpose of building the bridge. The principle applicable to that situation has been thus stated:

"Where under the terms of a contract entered into by a municipality and its contractor for the performance of such work it is provided, or necessarily implied, that the municipality shall do and perform certain things essential to the performance of such work under the contract, and as preliminary thereto, if the municipality refuse, it may be compelled by mandamus." (2 Bailey on Habeas Corpus, § 262, p. 1098.)

Where a valid contract has been entered into for the making of a public improvement in pursuance of a vote of the people officials charged with a ministerial duty in that connection may be compelled to act in conformity thereto by mandamus at the instance of any one having a substantial interest in the matter. The circumstance that the persons whose action is sought to be controlled constitute the governing body of the municipality concerned does not render them immune from being required to perform a positive duty which is laid upon them by virtue of their office, and which involves no exercise of discretion. Where they seek to justify nonaction on their part solely by a reason which is founded upon a doubtful conception of their legal obligations--where the controversy grows out of a dispute over a pure question of law, an authoritative answer to which will necessarily end the matter--the practice in this state is to permit the issue to be determined in mandamus, although in some jurisdictions the interpretation of a statute by executive officers will not be interfered with by courts in that manner. It does not follow that where the controlling body of a public corporation, in the exercise of its judgment as to governmental policy, sees fit to refuse to proceed with a contract to which it has committed itself, preferring to answer in damages for any resulting loss to the contractor rather than to carry out a course which it has determined not to be for the best interests of the community, it can be compelled to perform specifically its engagements by a writ of mandamus. It will be assumed,...