Willow Springs Irrigation District v. Wilson

• Decision Date: 22 June 1905
• Docket Number: 13,829
• Citation: 104 N.W. 165,74 Neb. 269
• Parties: WILLOW SPRINGS IRRIGATION DISTRICT v. JAMES WILSON
• Court: Nebraska Supreme Court

104 N.W. 165

74 Neb. 269

WILLOW SPRINGS IRRIGATION DISTRICT v. JAMES WILSON

No. 13,829

Supreme Court of Nebraska

June 22, 1905

ERROR to the district court for Garfield county: JAMES N. PAUL JUDGE. Affirmed.

AFFIRMED.

A. M Robbins, for plaintiff in error.

E. J Clements and V. O. Johnson, contra.

DUFFIE, C. JACKSON, C., concurs. ALBERT, C., SEDGWICK, J., not sitting.

OPINION

DUFFIE, C.

The petition in this case alleges that the defendant is an irrigation district duly organized under the laws of this state; that on November 20, 1895, soon after its organization, and for the purpose of enabling its directors to determine the amount of money necessary to be raised for the purpose of constructing an irrigation canal and acquiring the necessary property and rights therefor, it entered into a written contract with the plaintiff, by the terms of which it agreed to employ the plaintiff as engineer of said irrigation district, and to pay him for his services the sum of $ 5.50 a day for the time he was actually engaged in said services. A copy of the contract is attached to the petition. It is further alleged that the plaintiff performed 931/4 days' services for the defendant in making the surveys and plans for an irrigation canal and works for said district, and estimates of the cost of constructing the same, which survey, plans and estimates were accepted and adopted by the district; that on May 21, 1896, plaintiff presented to the defendant his account and claim for services amounting to $ 512.87, and the board of directors of the district audited said account and allowed only $ 350 on the same; that defendant neglected and refused to pay the amount due plaintiff for his services, or any part thereof, and he asks judgment for the amount of his claim, with 7 per cent. interest from April 30, 1896. A demurrer was filed to this petition, which was overruled, and thereupon the defendant answered. A trial was had to the court, resulting in a judgment for the plaintiff below for the sum of $ 305.25, with interest from November 20, 1896, at 7 per cent. per annum, making altogether $ 458. The defendant has brought the case to this court by petition in error, but has failed to file a bill of exceptions showing the evidence taken on the trial. In this condition of the case we can only examine the pleadings to determine whether they support the judgment entered.

It is vigorously contended by the plaintiff in error that the petition does not state a cause of action, and that it discloses facts avoiding the cause of action. The agreement made between the parties contains this stipulation "The party of the second part further agrees to wait for the $ 5.50 per day, the consideration above named, until the same can be paid out of the first tax levy on said district, provided the same is paid within one year from date." It is urged that the district could not enter into any contract relating to the construction of the ditch until the funds had been provided to cover the expense, and School District v. Stough, 4 Neb. 357, Markey v. School District, 58 Neb. 479, 78 N.W. 932, and Pomerene v. School District, 56 Neb. 126, 76 N.W. 414, are cited in support of this contention. These cases were all based upon a statute which prohibits a school district from contracting for buildings and the furnishing of school houses until the fund therefor is provided, and unless the statute relating to irrigation districts contains a like prohibition the authorities cited are not applicable. Section 24, article III, chapter 93a, Compiled Statutes, 1903 (Ann. St. 6846), provides that "the cost and expense of purchasing and acquiring property and constructing the works and improvements herein provided for, shall be wholly paid out of the construction fund, or in the bonds of said district at their par value. * * * For the purpose of defraying the expense of the organization of the district, and the care, operation, management, repair, and improvement of such portions of said canal and works as are completed and in use, including salaries of officers and employees, the board may either fix rates of tolls and charges, and collect the same from all persons using said canal for irrigation or other purposes, or may provide for the payment of said expenditures by a levy of assessments therefor, or by both said tolls and assessments." These provisions make it plain that the construction funds can be used only in purchasing and acquiring property for the canal, and constructing the same, and this was the construction given the section by this court in Lincoln & Dawson County Irrigation District v. McNeal, 60 Neb. 613, 83 N.W. 847. Section 13 makes it the duty of the board of directors, as soon after the organization of the district as practicable, to estimate and determine the amount of money necessary to...