Gilbert v. Canyon County

SULLIVAN, J. This action was commenced by the appellant, a citizen and taxpayer of Canyon county, to restrain the defendants, who comprise the board of commissioners of said county, from issuing and selling negotiable coupon bonds of that county for the purpose of raising funds with which to build a bridge across the Boise river at Notus in said county. The general ground of the complaint is that the commissioners have not followed the provisions of the statute which should govern their actions in such matters, and that, consequently, they are without jurisdiction to issue and sell such bonds. The action was tried on the complaint and answer and judgment was entered in favor of the defendants, denying the relief prayed for. This appeal is from the judgment. It appears from the record that on July 18, 1906, a petition in proper form was presented to the board praying for the construction of a wagon bridge by the county over Boise river near the town of Notus in said county. The commissioners considered the petition and made the proper order declaring that such bridge was a public necessity and that the cost thereof would be $12,000, and fixed October 11, 1906, as the date of hearing the petition. Proper notice thereof was ordered to be published and was published in the ‘ ‘ Caldwell Tribune,” a newspaper published in said county, for more than thirty days prior to the date of hearing. However, proof of such publication was not made and filed until April 27, 1907. On October 11, 1906, the board convened in regular session and the matter of said bridge came on for hearing. No objection was made thereto and the board ordered that the prayer of the petition be granted and that proceedings be had for the construction of -the bridge as prayed for. The board further found that the cost of said bridge would not exceed $12,000, and accepted plans and specifications for the construction of the same which had [433] been prepared by the county surveyor. Notice calling for bids for the construction of said bridge was ordered published and was published. Said notice stated that the bids would be opened on November 21, 1906. The board continued in regular session, adjourned from day to day, until October 17th, on which day an order was made and entered that the board adjourn until November 1, 1906. Said order is as follows: “‘On motion the board adjourned until November 1st, 1906, for the purpose of allowing claims for courthouse construction and any other regular business which the board may choose to take up.” On the 1st day of November the board met and the following order was made and entered of record: “On motion the board adjourned until November 21st, 1906, at 10 o’clock A. M.” For neither of these two last-mentioned adjournments was any notice posted as required by sec. 1758, Rev. Stat. On November 21st, the board met and opened the bids received for the construction of said bridge pursuant to the notice above referred to. The board proceeded to consider the bids submitted and let the contract for the construction of said bridge for the sum of $17,832, that being the lowest and best bid therefor. Thereupon the board made an order calling for a bond election, submitting the question to the electors whether a bond issue should be made to the amount of $18,000 for the construction of said bridge. No other proceedings relative to this matter were taken by the board until January 3, 1907, but other adjournments were taken by said board between the 21st of November and the 3d day of January, and no business was specified for these adjournments, nor was notice thereof posted as required by sec. 1758, Rev. Stat. for adjourned meetings. The bond election was held on December 29, 1906. On January 3d, 1907, the board met as a board of canvassers, canvassed the votes, and declared the bond issue carried, and adjourned sine die. Subsequently, proceedings looking to the sale of the bonds were had, bids were received and a bid was accepted therefor, all of which proceedings are set forth in the record, none of which proceedings are drawn in question except as their validity depends on the proceedings prior to the election. [434] IJpon that state of facts, the court entered judgment in favor of the defendant. Four errors are assigned: 1. That the eonrt erred in rendering judgment for the defendant;. 2. The court erred in holding as a matter of law that the board of commissioners in issuing and selling said bonds has acted legally and within its jurisdiction; 3. That the decision is against law; and 4. That the decision is not justified by the evidence. In our view of this case it is only necessary for ns to directly pass upon the second error assigned. That involves the question whether the board acted legally and within its jurisdiction in issuing and selling.said bonds. It is eon-tended by counsel for appellant that it did not, for the reason that the action taken by the board on the 1st and 21st of November, 1906, was illegal, as no notice of such meetings was given as required by law. It is contended that said meetings were adjourned meetings as provided by sec. 1756, Rev. Stat., which section is as follows: “Adjourned meetings may be provided for, fixed and held for the transaction of business by an order duly entered of record, in which must be specified the character of business to be transacted at such meetings, and none other than that specified must be transacted.” The order made on October 17, 1906, fixing the time for an adjourned meeting on November 1, 1906, expressly provides that said adjourned meeting is “for the purpose of allowing claims for courthouse construction and any other regular business which the board may choose to take up.” The only specification made in said order is the “allowance of claims for courthouse construction, ’ ’ and the statement in said order, to wit, “any other regular business which the board may choose to take up” is not a sufficient specification under the provisions of sec. 1756, Rev. Stat., and is mere surplusage. It will be observed that no mention is made in said specification of any proceedings to be had in reference to the construction of said bridge or of any election for the purpose of voting bonds or of anything in connection therewith. [435] Under the provisions of onr statute, three kinds of board meetings are provided for. By sec. 1755, Rev. Stat., regular meetings are provided for and are required to be held at the county seat on the second Mondays in January, April, July and October. It is also provided in that section that such other meetings must be held to canvass elections, equalize taxation and other purposes as are prescribed by law or provided by the board. Sec. 1756 provides for adjourned meetings and is above quoted. Sec. 1757 provides for special meetings which may be ordered by the board. Special meetings may be ordered by a majority of the board and the order therefor must be entered of record and five days’ notice thereof must be given by the clerk. The order must specify the business to be transacted, and none other than that specified must be transacted at such special meeting. See. 1758 is as follows: “All meetings of the board must be public, and the books, records and accounts must be kept at the office of the clerk, open at all times for public inspection, free of charge. The clerk of the board must give five days’ public notice of all special or adjourned meetings, stating the business to be transacted, by posting three notices in conspicuous places, one of which shall be at the courthouse door. ’ ’ That section provides that the clerk must give five days’ notice of all special or adjourned meetings, stating the business to be transacted, by posting three notices in conspicuous places, one of which must be at the courthouse door. The record clearly shows that the meeting of November 1, 1906, provided for by the order of the board, was an adjourned meeting, as it expressly provides and specifies the character of business to be transacted at that meeting. It provides that the adjourned meeting is for the purpose of allowing claims for courthouse construction and any other regular business which the board may choose to take up, thus limiting and specifying the business to be transacted at that session to considering claims for courthouse construction, as the balance of said order which refers to such regular business as the board may choose to take up is not a sufficient [436] specification of any business. That being true, and it further -appearing that five days’ public notice of such adjourned meeting was not given as required by sec. 1758, or at all, the board had no authority to transact any business at said meeting, not even that specified in the order. The statute requires notice of special and adjourned meetings to be given so that the public generally may know when such meetings are to be held and be advised of the business to be transacted at such meetings; therefore no adjourned or special meeting can be legally held until the required statutory notice is given. The meeting of November 1, 1906, was clearly an adjourned meeting within the meaning of our statute, and a simple adjournment of that meeting to November 21, 1906, could not transform an adjourned meeting into a regular session of the board. An adjournment of an illegal meeting cannot make such adjourned meeting legal. The conclusion we reach is that the board had no jurisdiction to hold the meetings on November 1st and 21st, and all of the business transacted by it at such meetings was without authority of law. Judgment reversed and costs awarded to appellants. Ailshie, C. J., concurs. Stewart, J., concurs in the conclusion.