Gillette-Herzog Manufacturing Co. v. Board of County Commissioners

COLLINS, J. The first point urged by defendant’s counsel is that plaintiff’s claims or accounts were not verified in accordance with the provisions of G-. S. 1894, § 687, when presented to and acted upon by defendant board, the exact point being that it was not stated in or shown by the written verifications that Bayne, who made them, was plaintiff’s agent at the time. The statute requires the verification to be made by the party in whose favor the claim or account is presented, or by his agent. Here the verification was made by Bayne, who, in behalf of plaintiff, and as its agent, entered into the written contract with defendant board, said contract being on file, and in the possession of the clerk of the board, from the time it was executed, and consequently when the accounts were presented. It was then part of the accounts, for reference would necessarily have to be made to it. Bayne also supervised the construction and completion of the bridge as plaintiff’s representative and agent, and when defendant board accepted it as completed it was accepted from Bayne. He was the only person with whom the board dealt from first to last, and in fact was a shareholder in plaintiff corporation, as well as its agent. In the case of West v. Berg, 66 Minn. — 302 — 287, 68 N. W. 1077, it was held that an affidavit for a writ of attachment in justice’s court, made by a person other than the plaintiff, is sufficient where it appears from the files and records in the action that it was made in plaintiff’s behalf, although not so stated in the affidavit. The verifications were sufficient. The next point made is that the contract was not legally entered into, because no bids for the construction of the bridge were advertised for. .This defense was set up in the answer, together with charges of fraud upon the county, and collusion between plaintiff and defendant board, whereby the contract in question was entered into for the purpose of cheating and defrauding the county out of about $3,000. On the trial it did not appear whether bids were advertised for or received prior to the letting of the contract, and no attempt was made to establish the allegations of its own bad conduct and fraudulent acts which the defendant board inserted in its answer. On the argument here its counsel seems to assume — First, that the board was imperatively required to advertise for bids, and then to award the contract to the lowest bidder; and, second, that it was incumbent upon the plaintiff to show compliance with the requirement in respect to advertising, and, further, that it was such lowest bidder. We have not been cited to any law which requires that bids be called for when road work is to be done, except the act of 1867 (G. S. 1894, §§ 1894-1902, inclusive). A glance at that statute will show that it is not in point here. And, even if it were incumbent upon the board to advertise for bids when a road or bridge contract is to be let, and then to enter into a contract with the lowest bidder, the presumption would be that the law had been complied with by the board; not that its members had violated the statutory provisions. This contention is without merit for either of these reasons. It is also argued that plaintiff cannot recover because the bridge was built in violation of G. S. 1894, § 1851; and also that the contract itself as to the width of the bridge was not complied with. It was stipulated in the contract that the bridge should be built in accordance with attached plans and specifications and to have “one roadway 16 feet clear width,” and in the answer it was alleged that the one in question, although more than three feet above the level of — 303 — the bank on either side of the river, was, with its approaches, no more than 14 feet wide. The evidence was conclusive that the approaches were slightly more than 16 feet wide, and that between the trusses the bridge itself was at least 16 feet. The superstructure was of iron, plank being used for flooring. The approaches were piling, with cross beams of wood, upon which were plank floors. For safety, hand rails had necessarily been placed upon each side of the approaches, and to protect these rails and the iron trusses, which were the innermost projecting parts of the superstructure, wheel guards about four inches wide and six inches high were laid upon the flooring. These guards simply served the purpose of preventing wheel hubs from coming in contact with hand rails and trusses, and in no manner reduced the width of the roadway. The expert as well as nonexpert testimony was conclusive that the plans and specifications had been followed, and that in respect to the width of the roadway the contract had been complied with. This fact disposes of the contention that the statute had been violated, even if we should construe'the language as meaning that the inside width of bridges should in some cases be 14 feet and in others 16 feet. We express no opinion as to what should be the construction of these provisions. In terms, the statute does not specify whether the width prescribed for bridges shall be inside or outside measurements, although it is explicit enough as to approaches. The answer, as finally amended, admitted the execution of the contract by defendant board, and then, among other things, alleged that at no time had the assessed valuation of the county exceeded the sum of $815,015; that the expenditure in question of $9,154 had never been submitted to a vote in the county, and had never been authorized or ratified by the voters therein. The claim is that the defendant board had no authority to enter into a contract for the building of this bridge, and consequently payment therefor cannot be enforced. This contention is really based upon G. S. 1894, § 1846, which limits and restrains the power of county commissioners in the matter of appropriating money for county roads, except as appropriations in excess of the specified sum or ratio of the assessed valuation of real estate in the county may be ratified by a vote of the people. It is manifest that without a vote'of the — 304 — people an appropriation and expenditure for the bridge in question of over $9,000, with a total assessed valuation of $815,015, were unwarranted and illegal. If this statute be controlling, the' defendant board exceeded its authority when it entered into this contract, and of this plaintiff would be bound to take notice. Our attention has not been drawn to any statute which modifies section 1846, or removes the restriction imposed upon the county commissioners, unless this was accomplished through, some of the enactments at the 1895 legislative session. By Laws 1895, c. 287, it was enacted that the commissioners of each county should establish or provide a fund for the construction, maintenance, and repair of roads and bridges in their respective counties, to be known as “the general road and bridge fund,” and on this fund all warrants for money expended upon county or town roads and bridges were to be drawn. Prior to the passage of this law such fund was generally created in each county under the provisions of G-. S. 1894, § 1558, the supposed necessary amount being included in the sum levied for county purposes. Provision was made in chapter 287, Laws 1895, for including in each tax levy a tax not exceeding one mill on the dollar of the taxable valuation of the county to constitute this fund, and there was no express prohibition upon the boards in respect to the amount of their appropriations, except as to town roads or bridges. By Laws 1895, c. 289, these boards were authorized and empowered to issue county bonds in an amount not exceeding one per cent, of the assessed valuation for the purpose of constructing free wagon roads and bridges “wherever such road or bridge may be deemed necessary” upon a vote of the electors of the county. Probably a fair construction of the above-quoted language is that the electors could vote upon the question of issuing bonds for the construction of one or more specified and designated roads or bridges, and, if so voted, the board of county commissioners would be empowered to proceed without further action of the electors. Further steps were taken that same year (Laws 1895, c. 297) whereby county commissioners were authorized tó submit to a vote of the electors a proposition to issue bonds for the purpose of constructing or repairing roads or bridges, or for other purposes. Bonds to be issued under this act could not exceed in amount two — 305 — per cent, of the assessed valuation. There are no express provisions in either of these chapters 289 and 297 which limit or restrict the power of the county commissioners in regard to the amounts which may be appropriated or expended in any one year out of the funds realized by the issuance and sale of bonds. Plaintiff’s counsel take the position that under either or any one of these 1895 laws it should be held that the prohibition found in section 1846, supra, has been repealed, and that there is now no restriction upon the commissioners as to their power to appropriate and expend the moneys which come into the county treasuries, known as “the general road and bridge fund.” We" do not find ourselves compelled to express an opinion upon this question. It will be seen from the foregoing statement that in either of several ways could the money to be appropriated and expended in the construction of this bridge have been on hand in the county treasury when the contract was entered into; and, further, that in more than one way could the defendant board have been authorized and empowered to execute the contract, to build the bridge, to allow plaintiff’s bill, and to pay the same in full. It is not a case where the acts of the board are or were ultra vires, but it is one where the board could have been given the authority to expend money in building the bridge already in the county treasury, or to expend that to be raised by the issuance and sale of county bonds for the construction of the bridge. If either of these statutes had been complied with, and conceding that the prohibition found in section 1846 is still controlling, the defendant board could have been empowered to enter into the contract, to cause the work to be done, to allow the bills, and to issue warrants for their payment. So the main question on this point is one of the burden of proof. Although defendant board, in its answer, alleged affirmatively that it was not authorized to enter into the contract, and had not been empowered by a vote of the electors to build the bridge or to expend the-money, no proof was offered upon this allegation. So that, when the testimony was closed, and the motion was made and allowed whereby the jury, as instructed by the court, returned a verdict for plaintiff, there was an entire absence of testimony upon this allegation. If. therefore, the burden of proof rested upon the — 306 — defendant board to sustain this defense, the court was right in its instruction. We have heretofore referred to the presumption that public officers do their duty while acting officially; that is, the presumption operates in favor of the regularity and validity of official acts. While acting within the scope of their official duties, upon any subject-matter over which they have control and are empowered to act, the presumption is that they do not exceed their authority. They are not presumed to disregard the law, or to exercise their power and authority in opposition to it, to act officially in a different mode from that prescribed. If upon them is conferred the power to enter into a contract in respect to any matter of a public character, although the power to act depends upon the existence of some preliminary fact, it must be presumed, if the contract is made, that the fact existed. Or, to put it in another form of words, all contracts made by public officials, if within the scope of their power and authority, are presumed to be made in view of and- in conformity with the law making them valid. As the execution of the contract stood admitted by the answer, and the power and authority to make it under certain circumstances were with the defendant board, the admission included and implied that these circumstances existed, and that the board was not guilty of official misconduct. It follows that the burden rested upon defendant to show its want of power to make the contract and to expend the money involved. No other question needs consideration.. Judgment affirmed.