McKinnon v. Robinson

Fisk, J. As disclosed by the complaint, the object of this action is to enjoin the carrying out of a contract for the erection of a new courthouse at Wahpeton, made by the board of county commissioners of Bichland county with the defendants Ingemann & Company. The plaintiffs are residents and taxpayers of said county, and as such they-assert the right to maintain' such suit in behalf of themselves and all other residents and taxpayers of the county who may elect to join with them in the prosecution thereof. That they have such right there is [383] no doubt. Engstad v. Dinnie, 8 N. D. 1, 76 N. W. 292; Storey v. Murphy, 9 N. D. 115, 81 N. W. 23; Fox v. Walley, 13 N. D. 610, 102 N. W. 161. In Engstad v. Dinnie it was, among other things, said: “The right of a taxpayer to institute an action to enjoin municipal officers from unlawfully dissipating public funds is a right common to all taxpayers, great and small, and mere private interests are not necessarily involved in suits of this character.” See also note to Pierce v. Hagans, 15 Ann. Cas. 1173, 1174, and authorities therein cited. We are clear, therefore, that the second ground of the demurrer is untenable. The only other ground of demurrer is that the complaint fails to state facts sufficient to constitute a cause of action, and this raises a question of more serious import. Do the facts alleged show on their face that plaintiffs are entitled to equitable relief by injunction or otherwise? Certain preliminary observations may here properly be noticed, which are that nowhere in the complaint is actual fraud or corrupt action on the part of any of the defendants charged or claimed, but it is .the alleged lack of authority to do the various acts complained of that constitutes the plaintiff’s grounds for equitable relief. It is asserted, the correctness of which assertion we think must be conceded, that the construction of the proposed new courthouse involves an extraordinary expenditure of public funds, necessitating a prior favorable vote of the electors of the county, unless, perhaps, as contended by respondents, that there are sufficient available funds, including the tax levy for the current year, to defray the costs thereof. Section 2419, Rev. Codes 1905, grants power to the county commissioners “to provide for the erection and repairing of courthouses,” but provides also that “no expenditure for the purpose herein named greater than can be paid out of the annual revenue of the county for the current year shall be made unless the question of such expenditure shall have first been submitted to a vote of the qualified electors of such county, and shall have been approved by a majority of the votes so cast,” etc. Our attention is also called by appellants to the provisions of chapter 67, Laws of 1909, which amends certain enumerated sections of the Revised5 Codes of 1905 relative to the powers of the board in the matter of extraordinary expenditures of public moneys. Among other things, said statute requires that a proposition for the establishing of a building fund [384] shall be first submitted to a vote of the electors, etc. It is strenuously insisted by appellants that the complaint, when fairly construed, not -only shows that sufficient funds were not on hand to carry out such proposed enterprise, but also that the alleged contract entered into for the ■construction of said courthouse is in contravention of law in several particulars, among other things, that the contract was not let by competitive bidding, nor was any provision made for the collection of an annual tax to pay the interest and principal when due of the indebtedness necessarily created thereby. Furthermore, that the proposition for such improvements was not submitted to a vote of the electors as required. On the contrary, it is just as strenuously insisted by respondents that such complaint discloses on its face that ample funds for erecting such building were on hand, and that the contract is in all respects legal. They also contend that in any event the facts pleaded, on their face, affirmatively show that appellants are not entitled to the in junctional relief prayed for and that the demurrer was therefore ■correctly sustained. We are not here concerned with the question of the broad equities ■or on an application for a temporary injunction, of the case as they may be developed by a trial, but we are merely to determine whether on its face the complaint fairly presents a case calling for equitable ■cognizance. In other words, do the facts pleaded disclose a want of equity on the part of those taxpayers? Manifestly they are entitled to the relief prayed for, unless it can be said, under the facts alleged, that respondents are proceeding in a legal manner, or that appellants, by lapse of time, have lost their rights to equitable relief by reason of the greater resulting equities in favor of the public. After mature deliberation we have reached the conclusion that it was error to sustain the demurrer, and our reasons for this conclusion will be briefly stated. We agree fully with appellants’ contention that the complaint, when fairly and liberally construed, as it must be, •discloses that the board, in letting the contract, failed to proceed according to law. The proposition called for an extraordinary expenditure of public moneys, and should have been submitted to a vote of the people. Sufficient funds were not on hand, nor was any provision made, as required by law, for raising the necessary funds required for the carrying [385] .■o.ut-of-such improvement. Even conceding the correctness of respondent’s contention that appellants cannot question the legality of the method whereby the $84,614 building fund was created, we cannot ignore the fact, as alleged, that a large amount thereof was wrongfully diverted from other funds and therefore presumably will have to be restored to the proper fund. Furthermore, it appears that even if such fund in boto is available, together with the current levy of taxes for 1911, it is evidently inadequate to complete such courthouse, it appearing from such complaint that the contract, as entered into, does not provide for furnishing such building with the necessary heating and ventilating apparatus, nor with electric wiring, gas fitting, plumbing, vault doors, vault window shutters, counters, bar railings, and furniture. But, aside from these considerations, we are agreed that under the facts alleged, the contract is void because not authorized by the voters of the county. This being true, the complaint states a cause of action, unless, as before stated, it appears therefrom that by lapse of time plaintiffs have lost their right to equitable relief. We are clear that no such situation is presented. While it appears that the work of erecting such courthouse was commenced prior to the institution of this suit, it does not appear how far such work had progressed; nor can it be inferred that such contract has at this time been substantially completed, as the same was not entered into until February 27th last, and by its terms the contractors are given until next August in which to complete their contract. Nor does it appear what portion, if any, of the contract price has been paid by the county. The rule invoked by respondent’s counsel, that the equities of the public far outweigh those in favor of these taxpayers, and that irreparable injury will inevitably result from the issuance of an injunction as prayed for, can therefore have no application to the questions here presented. Upon a trial of the cause on its merits it may develop that such rule can and should be successfully invoked. Order reversed, and the cause is remanded for further proceedings.