McEwen Manufacturing Co. v. Town of Covington

Opinion by LOGSDON, C. Only one proposition is presented and argued in the brief of plaintiff for a reversal, and that is that the trial court erred in rendering judgment in favor of the defendant and against the plaintiff. An examination of the petition filed by plaintiff in the trial court discloses that it is an ordinary petition upon an open merchandise account. There is no allegation anywhere of a contract lawfully made and entered into between plaintiff and defendant, and there is no allegation that the goods alleged to have been purchased by defendant were purchased by anyone having lawful authority to bind the town, or that the indebtedness when incurred was a lawful indebtedness for which the town could be held liable upon an implied promise to pay. It is nowhere alleged that the account was ever presented to the board of trustees of the town of Oovington in the manner and form required by law, or that the same was ever acted upon and disallowed by the board of trustees. The testimony affirmatively shows that the claim was never verified prior to the commencement of this action. It appears from an examination of the record in this case, that the tpwn of Cov-ington issued bonds in the sum of $45,000 for the construction of a waterworks system, and that it issued bonds in the sum of $30,000 for the construction of a sewer system, and that upon the sale of these bond issues the town entered into a contract with a construction company for the construction of the two public utilities upon the basis of a guaranteed cost, for which the construction company was to receive as full compensation for its services 15 per cent, of such cost, and the town of Cov-ington was to furnish all material used in the construction vf said public utilities. No other appropriation was ever made to cover the expense of building these public utilities than the bond issues voted by the people for this purpose. It is the contention of plaintiff that the materials and supplies covered by the account sued on were furnished to the town of Oovington and used by it in the construction of these two systems. Upon the trial of the case no effort was made by the plaintiff to show the existence of any valid contract for furnishing these supplies, except that it was shown that it furnished the pumps, manhole covers and some other articles of machinery or heavy equipment under competitive bids, but it is admitted that these items, which plaintiff furnished under competitive bids, were paid for and they are not involved in this action. It is further disclosed by the record that *42 the account sued on covers about 115 separate invoices extending over a period of tíme from October 31, 1919, to November 4, 1920,.and embraces items ranging in price from a few cents up to hundreds of dollars. The record further discloses that in the purchase of the goods covered by these 115 invoices, 14 separate and distinct persons gave the orders for the goods, some being by telephone. It is nowhere disclosed by the record that these 14 persons or any of them ever had any authority to act for the town of Covington in the purchase of these numerous supplies, and it is admitted that no itemized and verified claim; ■was ever presented to the board of trustees of the town for audit and allowance. Plaintiff relies for reversal in this case upon the case of Buxton & Skinner Stationery Co. v. Board of Com'rs of Craig Co., 53 Okla. 65, 155 Pac. 215, and the cases cited in that opinion, and on the cases of Hamilton Township v. Underwood, 81 Okla. 256, 198 Pac. 300, and School Dist. No. 8, Marshall County, v. Home Lumber Co., 97 Okla. 72, 221 Pac. 433. In the Buxton & Skinner Case and in the Home Lumber Company Case, there was an express contract, entire and indivisible, entered into between the parties at a time when the debt incurred was within the limits of the fund voted and appropriated for the current fiscal year or for the specific purpose covered by the contract. No such condition is shown to exist in the instant ease. In the case of Hamilton v. Underwood, the action was upon a warrant duly issued by the municipality, and this warrant prima facie established an indebtedness and the regularity of the proceedings leading up to its issue. This case is therefore not an authority upon the question here presented. Section 8595, Comp. St. 1921, provides: “All claims for money due from any county, township, city or incorporated town shall be itemized in detail, verified and filed for allowance with the proper authority not less than five days before' the meeting of such body for such purposes. Such verified claims shall show in detail the amount due on each item, the date thereof, the purpose for which each item was expended, and such other facts as are necessary to show the legality of such claim and each item thereof.” Section 8596 provides: “The proper authority of each county, township, city or incorporated town authorized by law to allow claims shall examine into each claim so filed for allowance at the meetings authorized by law to make such allowance, and if the same, or any part thereof, is found to be correct and is in compliance with section 1 of this act, the same shall be allowed for payment and a warrant issued therefor.” These two sections are seetious 1 and 2, respectively, of eh. 186, Sess. Laws 1913, and were in full force and effect during the period of time covered by the transactions here involved. These sections are merely extensions of the requirements theretofore existing in reference to claims against counties, so as to cover claims against all other municipal subdivisions of the state. The original section as to counties was section 1659, Comp. Laws 1909, and was carried forward in the Rev. Laws 1910, as sec. 1631, and now appears in Comp. St. 1921, as sec. 5825. This original section has been construed by this court in the early case of Allen v. Com’rs of Pittsburg Co., 28 Okla. 773, 116 Pac. 175, and that decision has been followed by this court a number of times. The construction there given to section 1659, Comp. Laws 1909, applies with equal force to the provisions of sections 8595 and 8596, supra. In that case plaintiff filed a claim with the county clerk of Pittsburg county February 3, 1908, said claim not being verified as required by the statute, but the claim was filed by the clerk and registered in the calendar of claims and given a serial number. This claim was disallowed in April with no reason assigned therefor. On June 30th thereafter, the claim was refiled with a proper verification as required by law. At the July session of the commissioners, this claim was ordered stricken from the files upon the ground that it had been previously disallowed and no appeal had been taken from such disallowance. In reference to the situation thus presented, Justice Williams said: “The claim not having been verified as the statutes required (sec. 1659, Comp. Laws 1909), a jurisdictional requirement was lacking. A charge of perjury could be predicated upon such affidavit. This requirement was evidently intended as a protection to the taxpayers against the presentation of false claims. In this state, in order to procure from a county the money on a false claim, one has to incur the risk of undergoing the pains and penalties of perjury. It follows that under such circumstances there could be no adjudication, and the plaintiffs in error having subsequently verified and refiled said claim, it was then properly before the board of commissioners for allowance or disallowance.” In the case of Bodine, County Clerk, v. McDaniel Auto Co., 69 Okla. 143, 170 Pac. 899, this court, in discussing claims against counties of the state, used this language: *43 “No claim can be paid by tbe county until tbe same is duly filed and allowed by tbe board of county commissioners. In case of rejection by tbe board, tbe 'claimant may either appeal to the district court or institute an independent action in the proper court on such claim. The authority to pass upon claims against the county is vested solely in the board of county commissioners.” It is therefore apparent from the language of tbe statutes above quoted, and from the construction given those statutes by this court, that before a claim against a municipal subdivision of the state, based on express or implied contract, can form the basis of a legal action, it must first have been presented to the board of such municipal subdivision having authority to pass upon and allow or disallow claims, and such presentation must be made in the manner and form required by law. Until the claim is itemized, verified, and filed for allowance with the proper autihorities, no jurisdiction is acquired by such, board to pass upon the validity or invalidity of such claim. Until the board, entrusted by law with the fiscal management of a municipal subdivision of the state, has had an opportunity to pass upon a claim of this character legally made out and -presented, no right of action in the courts for the enforcement' of such claim exists. If the claim be legally presented, as required by law, the board acquires jurisdiction to pass on it, and if it should disallow the claim in whole or in part, then either of two remedies is available to the claimant. He may appeal from the action of the board to the district court on county claims; or -as to both character of claims, he may file an independent action on the claim in the court having jurisdiction. In the instant case, the petition of the plaintiff filed in the district court did not state facts sufficient to constitute a cause of action against the defendant, and the general demurrer of the defendant to the. petition should have been sustained. However, upon a trial on the merits, the court rendered judgment in favor of the defendant, and this action of the trial court is amply sustained by the evidence, and the judgment should therefore in all things be affirmed. By the Court: It is so ordered.