State Ex Rel. Schaw v. Noyes

By the Court, Massey, J.: Original application for writ of mandate commanding the respondents to execute a certain contract for the construction of a system of water works, and to compel the president of said council and the clerk of said city to execute said contract, and to compel said city council to execute and deliver to the relators certain bonds of said city pursuant to said contract. The petition, among other matters, recites: That on the 13th day of September, 1897, the city council of the city of Reno called, by resolution, an election to be held in the city of Reno on the 7th day of October, 1897, for the purpose of submitting to the electors of said city a proposition to issue the bonds of said city, in the amount of $130,000, for the purpose of procuring water and the erection of water works for the city. That all necessary steps were taken for holding the election pursuant to said order, by the giving of due notice thereof, defining the polling places, which notice was published as required by law. *42 That in accordance therewith the election was held at the time and in the manner required. That on the 11th day of April, 1898, a canvass of the votes cast at said election was made by the city council, from which it was found that a majority of the votes cast were in favor of said proposition. That on the 11th day of May, 1898, in pursuance of said election, and in conformity with law, the city council published a notice to the effect that bids would be received until June 13, 1898, for the purchase of bonds, and also written proposals, with plans and specifications, to construct a water system for the city of Reno, to be paid for with the bonds of said city, which bids or proposals should be sealed, and addressed to the proper officer. That in answer to said notice the relators, on or about the 13th day of June, 1898, submitted to the city council written proposals, with plans and specifications, to construct a water system for the city, to be paid for with the bonds of the city, in conformity with the notice. That at a meeting of the city council held on the 2d day of July, 1898, the council passed a resolution accepting, the bid of the relators to construct a water system for said city, subject to certain modifications, which resolution was in the words and figures following, to wit: “Resolved, That it is the sense and judgment of this city council that the bid of Messrs. Schaw, Ingram, Batcher & Co. to construct a water system for the city of Reno from bar B, on the Truckee river, composed of the material mentioned in said bid, and of converse patent lock joints, be accepted, and a contract entered into with the said bidder for such construction as soon as the city council is, in law, free and unrestrained so to do, subject to the following modifications: * * *y that Messrs. Torreyson & Summerfield be, and they are hereby directed, in connection with the committee of water, fire and lights, to draft and submit to this council, at a special meeting to be held at 8 o’clock p. m. on Tuesday evening, July 5, 1898, a proposed contract embodying the terms of the foregoing resolution.” That at a meeting of said council held on the 7th day of July, 1898, the said council adopted the following resolution, to wit: “Resolved, That the proposed contract with Schaw, *43 Ingram, Batcher & Co. for the construction of a water system for the city of Reno, Nevada, * * * submitted to, and read in the presence of, this city council, be, and the same are hereby approved, and their execution is hereby agreed upon, to be performed as soon as the city council-is, in law, free so to do.” A copy of the approved contract was fully set out in the petition. By the terms of the agreement, in part, it is provided that the relators should be paid for their work 'in bonds of the city of Reno, bearing interest, as follows: $25,000, or the nearest approximate amount thereto, at the time of the execution of the agreement; $25,000 at the time of the delivery of all of the material for the water system at Reno, Nevada; the residue in installments of different amounts at subsequent dates. The relators, by the terms of the agreement, were required, at the time of its execution, to make and deliver to the city council a good and sufficient bond, in the sum of $50,000, conditioned for the faithful performance of the obligations imposed upon them by agreement. The other stipulations of the agreement are not material to the determination of the questions to be decided in this action, and are therefore omitted. There is also an averment that the relators at the time agreed to all the terms of the proposed contract, and are willing, and have ever since been willing, to enter into the same; that the relators thereafter demanded of the city council that it comply with,-and act in accordance with, its proposals, and execute the contract and deliver to the relators the amount of bonds at the time and in the manner provided in said contract; that the said city council was at the time of the commencement of this action attempting to let to other persons the contract for the construction of said water system, in contravention of its acceptance of the bid of the relators; and that the said council was, at the time of the commencement of the action, in law, free and unrestrained to execute the contract. Upon the application, the alternative writ of mandamus issued out of the court, to which the respondents answered, in effect, that on the 24th day of June, 1898, the Reno Water, Land and Light Company, a corporation, commenced an action in the Second Judicial District Court of Nevada *44 against the respondents, as the city council of the city of Reno, to restrain and enjoin such council from entering into the alleged and proposed contract with the relators, and from proceeding further therein; that, upon the final hearing and trial of said action, judgment was rendered by said court in favor of the said corporation on the 4th day of August, 1898, by which judgment and decree the respondents were forever restrained and enjoined from entering into the proposed alleged contract with relators, and from proceeding further in the matter; that said judgment, order, and injunction have never been revoked or modified, and are now in full force, and binding upon the respondents; that an appeal has been regularly taken from said judgment, and the same is now pending and undetermined in the supreme court. It is further shown by the return and answer that the respondents denied that the relators ever gave them notice of their acceptance of the terms of the proposed contract, or of their desire to enter into the same, or of their acquiescence in, or acceptance of, the modification thereof, except 'that on the 12th day of October, 1898, and long after the rendition of the judgment set up, the relators caused a notice and demand to be served upon respondents, a copy of which was attached to the return. It is further shown by the answer and return that the city council of the city of Reno, at a meeting held on the 2d day of November, 1898, adopted a resolution to the effect that no further action should be taken by the city council in respect to the matter of receiving bids or proposals for the construction of water works for said city until the Supreme Court of the State of Nevada had decided the matter relating thereto then pending in said court. It is further alleged that the city council have at no time intended, nor do they now intend, nor are they endeavoring, to contract with any person or persons for the construction of water works for said, city, nor will they enter into any such contract, until the pending appeal aforesaid shall have been finally determined. The relators interposed a demurrer to the answer, but we do not deem it necessary to consider separately the questions presented by the same, but such questions, as far as may be *45 necessary, will be incidentally determined in the discussion of the case upon its merits. Under the issues made by the pleadings, it was shown by the testimony of Mr. Schaw, one of the relators, that he was present at the meeting of the city council held on July 7, 1898, at which the contract, as prepared by Messrs. Torreyson & Summerfield, under the direction of the resolution of the city council adopted on the 2d day of July, 1898, and as set out in the petition herein, was read, and that he, as the senior member of the firm of Schaw, Ingram, Batcher & Co., the relators herein, in response to a direct question from the president of the city council, accepted the terms of the proposed contract. The action of the Reno Water, Land and Light Company against the city council to restrain it from entering into a contract for the construction of a system of water works under the proceedings had by the council for that purpose, and under which the relators claim their rights, was instituted on the 25th day of June, 1898. That action was called for the hearing of the motion of the plaintiff for a temporary injunction on the 1st day of July, 1898, at which time, upon statement of counsel for the defendant to the effect that the city council did not intend to accept any of the bids, in the form in which said bids were presented, but that it would probably enter into a contract with some one of the bidders upon the basis of the modification thereof, it was stipulated that the further hearing of the action should be continued until further orders; that the city council, before entering into or executing any contract for the construction of a system of water works, should serve a copy of such proposed contract upon the plaintiff; that the plaintiff should, within five days after such service, institute such proceedings to restrain the execution thereof as it may be advised; and that after the commencement of said proceedings the city council would not take any steps which would change the rights of the parties respecting such contract and the execution thereof until the decision of such action. The stipulation further provided that it should be entered as an order of court in the action. Thereafter, on the 13th day of July, 1898, the plaintiff in the action filed an amended *46 complaint, by which it sought to restrain the city council from entering into, the contract for the construction of the system of water works provided for by the terms of the contract under which relators claim. The answer of the city council was filed, trial had upon the issues, and the judgment rendered as set out in the answer and return of the respondents herein. The motion of the city council for a new trial was overruled, and an appeal taken therefrom, and from the judgment, to this court. It is also shown by stipulation that A. E. Cheney, the district judge who presided at the trial of that action, and rendered the judgment therein, was an inhabitant of the city of Reno, and the owner of a large quantity of property therein subject to taxation. Whatever power or authority the city council of the city of Reno may have to enter into the contract set up in the petition will be found in the provisions of the act incorporating that city. (Stats. 1897, p. 50.) The meeting of July 2, 1898, was regular, and the city council, under the provisions of that act, was authorized to accept the bid of the relators, and to make a valid and binding contract respecting the matters shown. Was such contract made or was such action taken by the city council and the relators at that meeting, standing alone, as would bind the city council and the relators, or create any liability under which the relators could claim any right of action? We 'think not. The order of the city council set up in the petition, and admitted by the respondents, was not such an acceptance of relators’ bid as would, independent of subsequent action, create any liability or any right of action whatever. The bid of relators was not unconditionally accepted by the city council. It was accepted subject to certain modifications specifically set out in the order itself. No claim or showing is made, either by the pleadings or the evidence, that relators consented or agreed to, or were willing to be bound by, the modifications made; hence there was not, and could not be, any contract or liability under this order. On the contrary, it was shown by the evidence of Mr. Schaw, one of the relators, acting for all, that consent to the modifications suggested was not given by the relators until the mat *47 ter was again considered by the city council and relators at the meeting of July 7, 1898. It is also shown that the city council did not intend to bind itself or the city by the order of July 2d, or give to the relators immediate and unconditional rights of any kind under their bid and the acceptance thereof, as the order expressly limits the time for entering into the contract with the relators for the construction of the system of water works to such time as the city council was free and unrestrained so to do. At the time this order was made an action was pending in a court of competent jurisdiction to restrain the city council from accepting the relators’ bid, and, on the day immediately preceding the one on which the order was made, the city council had, upon a showing made in that action by it, to the effect that it would not accept the bid of the relators, except in a modified form, entered into a binding stipulation with the plaintiff in the action not to enter into or execute any contract on such bid, as modified or otherwise, until after it had served a copy of such proposed contract upon the plaintiff, that the plaintiff should have five days after such service to institute proceedings to restrain the execution of such contract, and that after the commencement of such proceedings the city council would not'take any proceedings in the matter which would change the status or the rights of the parties to the action respecting the contract and the execution thereof until the decision of the action. This stipulation was made in open court, and entered as an order thereof. It is therefore clear that the order of the council of July 2d is based upon this action, and the stipulation of the council made therein, and that it did not intend to create any liability or rights under the order until such restraint was removed. At the meeting of July 7, 1898, the city council adopted an order approving the proposed contract, containing the modifications suggested in the order of July 2d, which modifications are shown to have been for the first time consented to by the relators. Without further restrictions or conditions, this order might have created such rights as would entitle the relators to the relief sought; but the order shows that it was not without condition, was not absolute, *48 and was not intended to be absolute and final by the city council. By express terms the execution of the contraqt is agreed upon to be performed “as soon as the city council is, in law, free so to do.” The city council must have had in view the effect of its stipulation in the action above referred to when it adopted this resolution. Within the five days fixed by the stipulation, the plaintiff filed in said action an amended complaint, setting up the same contract which the relators seek to have executed by this action. A trial was had in the action, and the judgment set out in the answer herein was rendered and entered. It will therefore be seen that the action of the city council, by resolution adopted in regular manner, upon which relators rely, and which is the only evidence of any contractual liability upon the part of the city, and to which the relators must have assented, if they can claim any right of action thereunder, created such liability upon condition only. The city council did not agree to execute the contract that day, upon demand, or at any specified time. It might, under the conditions shown, never execute the contract. The relators must have known the conditions of both resolutions. They are claiming rights under both, and, if the respondents are liable under either, or if any rights are given to the relators by either, they must claim such rights subject to the conditions imposed. Therefore, under the well-settled rules that: “ Mandamus is never granted in anticipation of a supposed omission of duty, however strong the presumption may be that the persons whom it is sought to coerce by the writ will refuse to perform their duty when the proper time arrives. It is therefore incumbent on the relator to show actual omission on the part of the respondent to perform the required act, and, since there can be no such omission before the time has arrived for the performance of the duty, the writ will not issue before that time. In other words, the relator must show that the respondent is actually in default in the performance of a legal duty then due at his hands, and no threats or predetermination can take the place of such default before the time arrives when the duty should be performed, nor does the law contemplate such a degree of diligence as the performance of a duty not yet due.” The relators must fail in *49 this action. (State v. Gracey, 11 Nev. 233; State v. Rising, 15 Nev. 164; 2 Spell. Extr. Relief, 1385; High, Extr. Rem., sec. 12.) This court has also held that the writ should not issue unless the relators show a clear legal right to the relief demanded. (State v. La Grave, 22 Nev. 419, 41 Pac. 115.) But it is claimed by the relators that the judgment and decree of injunction set up in the answer is absolutely void —a nullity — and of no binding force or effect against the respondents, for the reason that the district judge who presided at the trial was an inhabitant of the city of Reno, and the owner of property situated therein, subject to taxation, and therefore had such an interest in the suit as to disqualify him from acting in the case. Our statute contains a provision, common to nearly all states, prohibiting a judge acting in any action or proceeding to which he is a party, or in which he is interested. (Gen. Stats. 2464.) This court has held that the rule of the common law which made the action of a judge interested in the case an irregularity or error, to be corrected upon an appeal by a reversal of the judgment, had been so changed by our statutory provision as to render such a judgment not only voidable, but void. (Frevert v. Swift, 19 Nev. 364, 11 Pac. 273.) By the facts shown, was the district judge disqualified? This question has been very fully and ably discussed by the Supreme Court of California in Meyer v. City of San Diego, 53 Pac. 434. That action was instituted, for the ’purpose of setting aside, as illegal and void, a contract of the city involving a large expenditure of money of the city, to be obtained by the sale of its bonds, and to enjoin the issuance and sale of the bonds to carry out the alleged illegal and void contract. The bond issue had been voted at a special election, called under an ordinance of the city, submitting to the electors the proposition. The law under which the election was held, among other matters, directed the municipal authorities to levy and collect an annual special tax sufficient to pay interest and provide a sinking fund for the ultimate redemption of the bonds. The practice act of that state disqualifying the judge contains the same provisions as our act above cited. A motion for a change of venue because of the disqualification of the trial judge was made, upon the showing that he was the owner of *50 real estate situated and taxed in the city of San Diego for municipal purposes, and taxable for the payment of the bonded indebtedness growing out of the matters then in litigation. The supreme court, in discussing the question raised by the motion for the change of venue, after discussing many authorities, say: “Thus, the interest which one has in a public question, merely because he is a member of the civic body to be affected by the question, is not the interest which the law has in mind. In the case from which we have just quoted, the judge in probate was not held to be disqualified because, in a will before him, there was a bequest of money to trustees, to be devoted to the use and benefit of indigent persons in certain towns, of one of which the judge was an inhabitant. * * * And so, in Sauls v. Freeman, 24 Fla. 209, 4 South. 525, the fact that the circuit judge, with other registered voters of the county, had signed a petition addressed to the county commissioners, asking for a change of the county site, did not disqualify him, for interest, from sitting in a mandamus proceeding to compel the commissioners to call an election upon the question. In these and like cases the so-called interest of the judge is found to be remote, doubtful, and speculative — in no way certain in fact, nor susceptible of precise measurement. But, upon the other hand, where, in any litigation, there is any certain, definable, pecuniary or proprietary interest or relation, which will be directly affected by the judgment that may be rendered, in every such case, without exception, so far as an exhaustive examination of the authorities goes, the disqualification of the judge is held to exist. “Has the judge any pecuniary or personal right or privilege, directly affected by, or immediately dependent upon, the result of the case? As that question is answered, so is answered the question of his disqualification for the interest which we have been considering. * * * Even more immediate and direct is the interest of the judge in the case at bar than that which appeared in the North Bloomfield Min. Co. Case, 58 Cal. 315. The disqualification does not spring from the fact that the judge is a citizen, inhabitant, and taxpayer of the city of San Diego, nor yet from the fact that the *51 municipality is a party litigant in the action. It arises from the circumstance that he owns property within the city, which may or may not be liable for the burden of a special tax for the period of forty years, as he shall decide. The validity of this tax is directly called in question. The judge himself, under the circumstances shown, could have instituted, as plaintiff, this identical action. * * * The judgment which he renders in the case will be binding upon his rights and his property. His interest is in the outcome of the litigation, and it is a direct, measurable, pecuniary interest.” Mr. Justice McFarland, concurring in the judgment of the court, emphasizes the rule laid down, and pointedly marks the distinction between the case at bar and a case where a city in which the judge is a taxpayer is a party, and where there is a mere possibility that a judgment against the city might result in an increased levy of taxes, and a judgment in favor of the city might bring a reduction of taxation. He says: “In the latter case, and in others that could be mentioned, where a similar principle applies, the interest is too shadowy, indirect, remote, and contingent to be within the rule that a man cannot be a judge in his own case.” After citing authorities, he concludes: “ But in the case at bar the interest of the judge was not indirect, remote or contingent. It directly involved the immediate imposition of a special annual tax upon his property to continue for forty years.” (53 Pac. 436.) It will be observed that the trial judge was held to be disqualified because the facts showed a direct pecuniary interest of the judge in the suit. It directly involved the immediate imposition of a special annual tax upon his property, to continue for a number of years. The act incorporating the city of Reno confers authority upon the city council to issue the bonds and' create the indebtedness for the' purpose of constructing a system of water works. There is no authority given the city council, in express terms, to tax the property situated within the city for the purpose of providing means of paying the interest, and the ultimate redemption of the bonds. If such power or authority exists, it arises by implication alone. That the *52 legislature did not deem it necessary to confer such power or authority, by direct terms, is found in the last clause of section 34 of said act — the same section wherein authority is given to create the bonded indebtedness for the purpose of constructing a system of water works, by which the city council are directed to provide for the payment of the principal and interest of the bonds, and are empowered to provide by ordinance for the distribution of water to the inhabitants of the city, upon such reasonable terms as they shall deem expedient. Under the provisions of this act, it might never become necessary to tax any of the property within the city for the purpose of raising funds to discharge the interest and for the ultimate redemption of the bonds, as it was evidently expected that the interest account might be met, and the sinking fund created, from water rates established by the city council. Applying the rule of the California case above cited, it can be said that the interest of the trial judge in the case is too shadowy, indirect, remote, and contingent, to disqualify him from sitting; that his interest in the result of the litigation is not direct, measurable, or pecuniary. It is not necessary to pass upon other questions discussed by counsel, or to determine the rights of the intervenor, if he has any, as the peremptory writ must be denied, and the proceedings dismissed. It is so ordered.