Gum Ridge Drainage Dist. v. Clark

Smiti-i, C. J., delivered the opinion of the court. This is an appeal from a decree awarding the appellees a recovery against the appellant for the sum of twenty-nine thousand, eight hundred nineteen dollers and fifty-three cents, together Avith certain specific directions relative to the assessment of the land Avithin the drainage district and certain other matters not here material to be set forth in vieAV of the disposition we have decided to make of the cause. The appellant drainage district was organized in 1910 under section 1683 et seq., Code of 1906 (section 4264 et seq., HemingAvay’s Code). After the organization of the district the adoption of .plans and specifications for the proposed work, to wit the [395] building of a levee, tbe assessment of the benefits to be derived therefrom, and the damages, to be sustained thereby by the landowners and the sale of the- bonds permitted by the statute for raising the revenue with which to pay for the proposed work, the drainage commissioners advertised for the construction of the levee according to the plans and specifications then on file and awarded the contract to the appellees in accordance with their bid to construct the levee at eighteen cents per cubic yard. After the contract ivas let and probably before any work thereunder had been begun-by the appellees the drainage commissioners decided to increase the size of the levee by about one-half, by widening the top and base and increasing the height thereof throughout its length, and pursuant thereto new specifications were substituted for the old ones with the consent of the appellees, who continued and completed the construction of the levee in accordance therewith. Before the completion of the levee the drainage commissioners entered into a written contract with the appellees in which it was set forth that it would be necessary for the commissioners to raise about seventeen thousand dollars in addition to the fund then available to them for the payment of the amount that would be due the appellees for the construction of the levee, and that the'drainage district would issue to the appellees certificates of indebtedness therefor. These certificates of indebtedness were never issued, and we have been refered to no statute in existence when the agreement so to do was made by which they are authorized. The amount claimed to be due the appellees under this agreement is nineteen thousand, sixty-four dollars and eighty-three cents, with accrued interest thereon. The agreement to increase the size of the levee and to pay the appellees for the additional work necessitated thereby was made without advertisement for bids therefor as provided by section 1710, Code of 1906 (Hemingway’s Code, section 4299). [396] Tlie prayer of the bill is, among other things, for a decree awarding the appellees a recovery of the amount sued for and directing the drainage commissioners to reassess the land in the district for the payment thereof, in accordance with the provisions of chapter 199, Laws of 1912 (Hemingway’s Code, section 4290). Under the statute under which this drainage district was organized the commissioners were without power to reapportion the cost of the levee among the landowners in order to obtain the money with which to pay the cost of the increase made in the size of the levee after the original assessment of the landowners therefor. So that, in order for the appellees to enforce the payment of their claim, a reassessment of the landowners therefor must be authorized by chapter 199, Laws of 1912 (Hemingway’s Code, section 4290), enacted about two years after the levee was constructed, which provides that: “In any case where the commissioners of any drainage district, acting under chapter 39 of the Code, of 1906, may have underestimated the cost or extent of said .proposed work and shall have contracted for the performance of such additional work as they may have deemed necessary to carry out the needs of their district, then they shall reassess the several properties in the district for said additional work in proportion to the benefits received, as provided in said chapter for the first assessment,” etc. In order for the appellee’s claim to come within this statute the drainage commissioners must have: (1) Underestimated the extent of the proposed work; and (2) have contracted with the appellees for the performance of the additional work necessitated thereby. First. The work proposed to be done by the drainage commissioners when the estimated cost thereof was apportioned among the landowners, and the contract therefor was let, was to construct a levee in accordance with the plans and specifications then on file, and no underestimate was then made by the commissioners either of the extent or cost thereof, but what occurred, as hereinbefore [397] set forth, was' that the commissioners decided simply to increase the size of the levee about one-half for the reason that in their judgment such a levee would serve the purposes of the district better than the one originally proposed and on the estimated cost of which the landowners had passed. The statutes under which the district was formed all contemplate that the landowners shall have an opportunity to object to the character, extent, and estimated cost of the work proposed to be done by the drainage commissioners, and, while chapter 199, Laws of 1912 (section 4290., Hemingway’s Code), modifies this right to some extent, it does not confer upon the commissioners the right to so change the plans and specifications of the proposed improvements after the estimated cost thereof has been passed on by and apportioned among the landowners so as to materially increase the cost of the work proposed to be done simply because in the judgment of the commissioners such increase therein is necessary in order for the accomplishment of the purposes for which the district was organized. Second. The contract originally made by the commissioners with the appellees pursuant to the advertisement therefor was for the construction of the levee according to the plans and specifications then on file and the substitution of new plans and specifications for those under which the contract was let was equivalent to the making of a new contract, and section 1710, Code of 1906 (section 4299, Hemingway’s Code), requires all contracts to be let to the loAvest bidder after publication therefor has been made. It is true that, even had this new contract-been entered into pursuant to the provisions of the statute, the drainage commissioners, as heretofore stated, would have been without power to reassess the land in the district in order to obtain the money Avith which to pay the increased cost of the levee, and that chapter 199, Laws of 1912 (section 4290, Hemingway’s Code), was enacted to supply that defect in the commissioners’ power; [398] nevertheless the condition on which the commissioners are invested with the power conferred by the statute is that they shall have contracted for the performance of the additional work, which ex vi termini means in the manner provided by law. • . The decree of the court below will be reversed, and the bill dismissed. Reversed, and, MU dismissed.