Dunn v. Sharp

MORGAN, J. (After Stating the Facts.) — It will be noticed that the foregoing contract was executed and entered into without any survey of said road having been made or’ completed between the town of Wallace and the mouth of the St. Mary’s river; that no profile or any specifications of said survey or any survey between the above-described points was ever placed on file in the office of'the state wagon road commission. The statute authorizing the construction of a system of state wagon roads in this state in part is as follows: “Sec. 2. There shall be- constructed as a portion of said system of roads, a road beginning at the head of the falls of the Little Salmon river, .... and extending thence north through Nez Perces and Latah counties, by the way of the mouth of the St. Mary’s river to Wallace in Shoshone county, .... together with such bridges over the streams crossed by all of said roads as may be necessary for safe and convenient travel thereon.” After providing in the five succeeding sections for the organization of the state wagon road commission, section 8 provides as follows: “Sec. 8. Said commission or a majority of the members thereof, shall at their first meeting, or as soon as practicable, appoint one or more persons to survey and definitely locate the roads to be constructed under this act, between such places and along such general routes as the commissioners may order, subject to the provisions of the act,” etc. The section then proceeds to prescribe the qualifications of such engineers and their compensation, and proceeds: “All work done by said engineers shall be accurately performed and clearly marked out in the field, provided that no grade on said road shall exceed ten per cent. Sec. 9. As soon as practicable after the lines of said roads have been determined the commission shall meet at such place as may be determined upon and shall proceed to divide the lines of said proposed roads into sections, naming as the beginning and end of each section well known and easily determined points; and shall determine and settle upon the width of proposed grades, the points on said roads where culverts, corduroys, drains, and turnouts shall be.necessary, the distance upon each side of the roads that trees shall be cut down, the bridges that 103 shall be built and their dimensions, method of construction and material out of which they shall be built, and all other requirements that may be proper and necessary. See. 10. That upon dividing said roads into sections, as provided for in section 9, the said commission shall let as soon as practicable in the year 1893, to the lowest responsible bidder or bidders, .... contracts for such of the several and different sections of said road as the commission may decide upon letting for said year.” Section 10 further provides that one of said sections shall commence “at Wallace in Shoshone county, and extending toward the mouth of the St. Mary’s river in Kootenai county, and on the right of the road, and commencing at the mouth of the St. Mary’s river in Kootenai county and extending toward Mt. Idaho.” The first question to be considered by the court is the authority of the plaintiff in this cause to bring this action. A very similar condition of things existed in the case of Orr v. Board, reported in 3 Idaho, 190, 28 Pac. 416. It is not necessary here to repeat the opinion in that case, but it is sufficient to say that on the authority of that case and on the case of Maxwell v. Supervisors, 53 Cal. 391, we hold that the plaintiff, being a citizen and a taxpayer in Shoshone county, and the value of his property being affected by the location and building of this road, he has the right to bring suit to determine whether the commissioners have exceeded the authority given them by the law in the letting of this contract, and this latter question is the principal one to be determined by this court. It will be seen from the provisions of the law as above quoted that, prior to letting any contract, an engineer shall be appointed, and surveys made, and the road accurately marked out on the ground over which it passes; that the commission shall determine and settle upon the width of proposed grades, the points on such roads where culverts, corduroys, drains, and turnouts shall be necessary, the distance on each side of the roads that trees shall be cut down, the bridges that shall be built, and their dimensions, etc. The board of state wagon road commissioners exists only by authority of the statute 104 quoted above; it has no .power or authority except that given it in this statute. In the performance of its work it must be governed by the law prescribing its duties and directing the method of its work. It will be seen by the above statement of facts that the commission has proceeded to let this contract to the said Payne without having first made any survey, plot, or profile of the road to be so constructed. This is in direct violation of the statute. The reasons for the provisions are apparent, as no person desiring to build this portion of the road, without the same is surveyed, staked upon the ground, maps and profiles thereof made, the bridges to be built and positions and dimensions thereof designated, can form any correct estimate of the amount of money required to build the same, and therefore can make no proposal from which he Emself or the commissioners can form any judgment as to whether the sum proposed for construction is too great or too small. As no complete survey has been made of this section, neither the commissioners nor the contractor can know whether the road can be built for the sum named, or whether it can be built for one-half the sum. The board not having followed the provisions of the law above set forth, the court must hold that the said contract so entered into between the state wagon road commission and the said Payne is illegal and void. Costs awarded to petitioner. Huston, C. J., and Sullivan, J., concur.