Tullock v. Webster Cnty.

• Decision Date: 15 October 1895
• Parties: TULLOCK v. WEBSTER COUNTY.
• Court: Nebraska Supreme Court

46 Neb. 211

64 N.W. 705

TULLOCK

v.WEBSTER COUNTY.

Supreme Court of Nebraska.

Oct. 15, 1895.

Syllabus by the Court.

1. Prior to the enactment of chapter 72, Laws 1887, a county under townshiporganizationwas not invested with the power, nor charged with the duty, of building or repairing bridges situate in the county. Whitcomb v. Reed, 37 N. W. 684, 24 Neb. 50.

2. By the enactment of said chapter 72, it was not intended to make counties under township organization liable for the payment of bridges already constructed, nor for the payment of repairs made on bridges prior to the taking effect of said act.

3. A petition filed in a suit against a county to recover for labor and material, of the value of more than $100, furnished in 1887 towards the construction of a bridge, in pursuance of a contract between the plaintiff and the county board of such county, did not allege that the bridge constructed was situate in the county, nor that at the time the contract was made there was on hand money available for the purpose of paying for such labor and material, as provided by section 83, c. 78, Comp. St. 1887, nor that the county authorities advertised for bids for the furnishing of the labor and material sued for. Held: (1) That the petition did not state a cause of action; (2) that these facts must have existed as a condition precedent to invest the county board of said county with jurisdiction to make the contract sued on; (3) that as such facts did not exist, the contract made was ultra vires and void, and incapable of ratification by the county. Townsend v. Holt Co., 40 Neb. 852, 59 N. W. 381;Gutta Percha & Rubber Manuf'g Co. v. Village of Ogalalla, 40 Neb. 775, 59 N. W. 513, followed and reaffirmed.

Error to district court, Webster county; Gaslin, Judge.

Action by Alonzo J. Tullock against Webster county. To a judgment for defendant on demurrer to the petition, plaintiff brings error. Affirmed.

O. P. Mason and J. N. Rickards, for plaintiff in error.

J. R. Wilcox, J. S. Gilham, and Case & McNeny, for defendant in error.

RAGAN, C.

Alonzo J. Tullock sued Webster county in the district court thereof, which sustained a demurrer to Tullock's petition. He refused to plead further, whereupon the court entered a judgment dismissing his action, to reverse which he has prosecuted here a petition in error. The allegations of Tullock's petition necessary to an understanding of the points made here are, in substance, that, on the 16th day of June, 1887, Tullock entered into a contract in writing with Joseph Garber, Alfred McCall, and Reese Thompson, “bridge committee for and in behalf of said Webster county.” By the terms of the contract Tullock agreed to furnish the material and labor and construct a bridge for the bridge committee over the Republican river, south of Red Cloud, and have the same completed by the 1st day of November, 1887. The petition then alleged that Tullock fully performed his contract before the date last mentioned, and that, “during the execution of said contract, the said defendant, Webster county, directed and required, and then and there consented and agreed to pay the said plaintiff for, the extra work and material hereinafter more particularly set forth, viz. that after Tullock had excavated the bed of the river to the first stratum of rock, for the purpose of building the north pier of said bridge, according to the plans and specifications, made a part of the contract, Tullock was requested and required by Webster county to make said excavation to the second stratum of rock; that he did so; that Webster county then and there agreed to pay Tullock for the extra work and material required to carry the pier to the second stratum of rock; that said extra labor and material were of the value of $842.20.”

1. Webster county, during the entire year of 1887, was under township organization, and, at the time the contract for this bridge was entered into by the “bridge committee” and Tullock, the county was not invested with the power, nor charged with the duty, of building or repairing bridges in the county. See Whitcomb v. Reed, 24 Neb. 50, 37 N. W. 684, where all the statutes bearing on the subject of the duties and liabilities of counties under township organization for the erection and reparation of bridges in the county were examined, and the conclusion stated above reached.

But the legislature, on the 24th day of March, 1887, passed an act (chapter 72, Laws 1887) which provided:

“Section 1. That in counties under township organization the expense of building, maintaining, and repairing bridges on public roads over streams shall be borne exclusively by the counties within which such bridges are located.

Sec. 2. The county board of every such county shall build, maintain, and repair every such bridge, and make prompt and adequate provision for the payment of the expense thereof.”

The legislature of 1887 adjourned on the 31st day of March of that year. Consequently, this law did not take effect before the 1st day of July of that year, and there is no allegation in the petition as to the date when Webster county contracted with Tullock to furnish the extra labor and material, nor is there any allegation in the petition showing when he furnished such extra labor and material. The allegation is that the labor and material were furnished at the request of Webster county during the time that Tullock was constructing the bridge; that is, some time between the 16th day of June, 1887, and the time of the completion of the work. This is too indefinite. We cannot presume from this language that the county contracted for, nor that Tullock furnished, the extra labor and material subsequent to the 1st of July, 1887. The legislature did not intend, by the act just quoted, to make counties under township organization liable for the payment of bridges already constructed, nor for the payment of repairs made on bridges which repairs had been made prior to the passage of the act. The obvious purpose of the act was to put the burden upon the counties, instead of the...