Clarke v. County of Beadle

169 N.W. 23, 40 S.D. 597, 1918 S.D. LEXIS 128

• Court: South Dakota Supreme Court
• Decided: September 3, 1918
• Docket: File No. 4316
• Status: Published

Opinions

WHITING, P. J.

The county commissioners of Beadle county 'having entered! .into a contract with the Iowa Bridge 'Company for the building of certain bridges, plaintiffs, alleging the invalidity of such contract, .brought this action, on behalf of themselves and other taxpayers of su'ch county, to restrain the County and' it® officers from carrying out stock contract 'and making payments- 'thereunder, and asked for such other and further relief as to the court might seem- just and -equitable. A temporary- restraining order was denied. Afterwards the bridge company 'was made a party -defendant. The cause .was ithen tried' -upon its merits, and1 findings, conclusions, land judgment entered'in favor of defendants.. From such judgment this appeal was taken, but no supers-eide-as1 bond was furnished. After appellants’ brief upon appeal ihdd been filed, respondents! moved ia- -dtismiissal of the appeal, supporting -such' motion by affidavits -from which ;it appears- that the bridge company, pending the proceedings in the lower court and in’ this court, hias completed its Contract, and has .received payment from' the county for the work done. Respondents ¡contend! that there is left but a m'oot question, and that 'this court should not retain' this appeal for the purpose of passing upon such question.

[1] Appellants- contend that this! motion cannot he presented ■upon 'affidavits, and that the court can only 'consider the record uipon ¡appeal. In .this, appellants are in error. Silvius v. Brunsvold, 32 S. D. 252, 142 N. W. 944.

[2] Respondents rely upon the ruling, of this court in C., M. & St. P. Ry. Co. v. Sioux Falls, etc., 28 S. D. 471, 134 N. W. 46, and Holter v. Wagner, 32 S. D. 137, 142 N. W. 175. The 'decision, in the fnns't-mentiaméd case -is not in pditat. The appeal therein- was from' -an oind'er refusing a temporary injunction, which order could not (be pleaded as res judicata in any proceeding, brought seeking alter native, relief. It -is .true that in the latter ¡case the 'proposition hereinafter 'discussed was suggested, but no. authorities -were cited in support thereof, and we failed to give- -that consideration which it otherwise should- have received. We failed to note and consider that, though through: no fault of the plaintiff 'a situation 'had arisen making it impossible to grant him the relief sought, he yet -might be entitled to alternative relief in that action or to' ¡seek other relief in .another action, and further to note and ¡consider that, lb.y dismissing the appeal -and thus1 allowing the judgment of the lower .court to stand, we allowed -such! judgment to stand as a bar to> alternative relief -in that action and as res judicata in any other action- that ■might be brought based upon the alleged linvai-idity of the contract. We are Of the opinion that the majority opinion' in that case was erroneous.

[3] An appellate- count should not retain an appeal for the mere purpose of deciding a purely moot question; and, whenever a change in. circumstances pending an -appeal 'its siucb that the -appeal does present but a moot question, suicih court should' dismiss same. However, both- reason -and authority support the proposition that ,whenever the judgment, ¡if left unreversed-, will preclude the party against whom -it is rendered as to .a fact vital to. his rights, such as! to the validity of a contract upon which: his rights -are based, it cannot properly be said that there is left before the appellate court but a mO-ot question, even though on account: (of changed conditions the relief originally sought by appellant cannot be -granted upon the reversal of such judgment. 2 R. C. 170; 4 C. J. 576.

It must be remembered that the change in circumstances upon which tills motion is based was not brought about through the acts or efforts of appellants' — they are not -in any wise responsible' for the fact that there-has been, -such change in ciricumistances' since áie 'commencement of the action.- If appellants-''Were entitled) to 'inj-uiiCt-i'onal relief, it was ¡because a right hiad been violated. 22 Cyc. 749, This! right was their right, as taxpayers, to have the .'contract entered into' in accordance -with, the requirements of tire statutes enaotddl for the taxpayers’ protection. The fact that such relief cannot now 'be granted in no manner justifies this, court in allowing an erroneous judgment to stand unreVersed',’ thus leaving the fact that appellants’ rights! had been violated adjudicated against them, and thus barred- of all alternative remedies -which' otherwise would! be -theirs. If we should hold the 'contract invalid, the trial court may then, under the general prayer flor relief, be able to' give to the taxpayers, through thesle appellants and in this action, alternative relief in the way of money -damages; or appellants, if successful here, might bring another action, as was done in McMillan v. Barber Asphalt Paving Co., 151 Wis. 48, 138 N. W. 94, Ann. Cas. 1914B, 54. In that case St was said:.

“The defendant, -after it was informed by the 'commencement of the -other action that its -contract was1 tainted with illegality, went on and performed the same -at its peril. * * * The -plaintiff is entitled to vindicate the rights- recognized- and established by the judgment Am the -action in which he ¡prevailed. We find nothing in the coudluct of the plaintiff which amounts to a waiver of his right to assert ¡the illegality of the contract.”

[4] We would call attention to the facts 'disclosed- by the -opinion in- McMillan v. Paving Co. and in the “-other action” referred to in the 'above quotation, being the action reported on appeal in McMillan v. City, 139 Wis. 367, 120 N. W. 240. It has’been 'suggested that the facts here are to he 'distinguished from- those -disclosed' in the Wisconsin cases because in those oases- the -alleged' grounds of invalidity of the contract involved were fraud and -collusion. It certainly makes no difference in a taxpayer’s rights to an injunction whether the contract between the municipal corporation and' -the Contractor is void, as -claimed in this case, owing to' a failure to comply wAthi statutory provisions necessary to the validity of súdh -contract. Oertalihly one’s rights to an -injunction ¡based upon the absolute invalidity -of a contract ¡are las- great as are -his rights to an injunction bateed upon the Voidability of a -contract In McMillan v. City, it .will be found that a- taxpayer was- attempting to -restrain- .the City from -carrying out a contract entered into- with- a paving company. Upon the appeal 'it was held that ’the trial court errdd in refusing the Snj Unational relief. The paving company was not a party to that action. Thereafter, tfhe plaintiff in that action ¡brought the other action ¡to recover from the paving 'company the amount of a special improvement botad which' had1 been received by the paving company and by it assigned to a third party. The court held that, although the paving company was not a party to the first action, it was bound thereby 'because of the fact that its1 attorney, while ¡appearing ¡therein for the city, was. in reality appearing for the paving company. That question is not presented in the case before us, because the bridge company is made a party to the pending action. Ini the Wisconsin, cases it appears from the facts appearing in the second' action that, pending the appeal in the first action, the contract had been completed and the bonds turned over, just as it is ¡alleged has ibeen done in this case. In the case against the city there does noit appear to have been any motion to dismiss tire appeal upon tine ground that there Was but a moot question left; but, if such' motion bad been made, -it can readily be seen ¡that lit shlduld have been overruled for the reason that there was ¡left more than a moot question. That there ¡was -more than a adoot question left is -shown from the very fact of the -staccess off the plaintiff in the second1 action. If, .in the first of the Wisconsin .cases, tine appellate court had dismissed the appeal, thus leaving the judgment ¡of the trial court -unreversed', such judgment •wbuld'have stood as res judicata against McM-i-llan, and would have barred hi® recovery in the other action; and yet, as a matter of right, as found by tine .appellate court, although circumstances had arisen -s'o¡ that the relief to which 'he was entitled in the first action could not then be granted him, having Ibeen -entitled' to siu-ch relief, he wa-s entitled, in ¡lieu thereof, to alternative relief by way -of -damages. We have exactly the s-aime -situation here. Upon- this moittiiota we have no right to consider the merits of the appeal, but we are bound to ¡presume, for the purposes of -su-ch motion-, that, upon, the merits of the appeal, ¡appellants -would 'Succeed. To determine whether or nlot the question before -us, is but a moot question, let us ask What the situation would be if, upon the mler-its of this appeal, we should! find that the trial cou'rt erred in1 refusing the injunctions. If we should so hold-, than, ju-st -as in the -second Wisconsin case, these taxpayers would have a right -to seek, eMiler through an amendment of their complaint in- the -action nldw pending, or else through lan independent action, to recover from- the bridge company the difference between w'hat the county has paid it and the 'amount ■to wh'idh. it was equitably entitled, if anything.

It has been 'suggested that it would be,impossible to undo what the bridge company ¡has done. That is certainly true, and no one would contend that this or the trial court could now, 'by any equitable relief whatever, undo what has been done. But this court iat least can see to it that the taxpayers are not barred (now that they have been denied the equitable relief, and provided we hereafter find they were wrongfully denied such relief) from recovering such darngaes- as they may shdw themselves entitled to. Of course, if, upon the merits of the pending -appeal, we -shall decide that .the trial ■court was right, by such decision we will hold that the ‘appellants had no '.right to injunctional relief, and oiur adjudication will stand as a ¡bar to any future claims that they may make baseldi upon facts which would stand -adjudicated against them (by our 'sustaining the trial court. If we should determine that appellants were in the right and .were entitled to have received the injunctional relief which they sought, they cohld then amend their ple'adiings in this ■action or bring another action and seek to recover money damages, as was done in McMillan v. Paving Co. It will then be timie enough for the ••courts to determine whether or not the fact that the bridge is built land is of value to the .municipality and the people thereof ■can be -considered as a defense, counterclaim, or set-off to plaintiffs’ demands. That is a matter 'with which at this time this- court has no concern.

A case peculiarly analogous to the one before us is that of Green v. Okanogan County, 60 Wash. 309, 111 Pac. 226, 114 Pas. 457. In both cases all parties to the contract, including the county, -the county commissioners, and the other contracting parties, were made defendants. In both cases' the contract was attacked upon the ground that the 'commissioners had not complied with the statutory requirements. In both cases the-'trial court held against plaintiffs and entered judgment dismissing .the action. In both cases it appeared, from .affidavits filed subsequent td the perfecting of the appeal, that 'the contract had 'been executed. In both cases respondents sought a dismissal of the appeal on -the ground -that, the contract having been fully executed, nothing but a moot question remained1. In the Green. 'Case tire court held that the court should undo what had been done in so fax- as it could' be ixndione, but that if it could not be undone the defendaxxts should answer in damages fax* whatever they had .done that could not'he undone. The corxrt said:

“The respondents .moved to dismiss the appeal On the ground •that there has been a cessation of the controversy. It appears from, affidavits filed subseqxxent to the' pex-fection of the appeal -that the board of county coxxmissioneriS executed the contract after the dismissal of the action in the court below, and it is, contended that nlaw there is nothing upon which the injxxmction can operate, as the acts of the defendants sought to be eixjoined have been fully performed. But this contention mistakes the power of the court. It is true that ''when, pending am appeal 'from the judgment of the lidwer court, 'and without -any fault on the part of the respondent, an event occurs which renders it impossible -to enter a judgment in favor of the appellant which will give any effectual relief, tire court will not proceed to a formal judgment, but 'will dismiss the appeal, and it is held also that the same resixlt will follow if the in-tervexxixxig event is owing to some -voluntary-act of the applicant. Bxxt no such result follows merely because the respondent has changed the status of the subject-matter in litigation. So in this case, if it appears that the comtraot entered into was subject to ¡be enjoined because in violation of the statutes, the court may now inquire into' the subsequent acts of the respondents, and compel them to undo what they have wrongfully done in so far as it ‘is capable of undoing, and to answer in dlamages for anything that cannot be xxn- ‘ clone. This, principle was announced in the eaxdy case from- this .court of Hartson v. Dale, 9 Wash. 379, 37 Pac. 475. * * * The decision was .rested 'on the ground that It would be highly inequitable to allow any subsequent action of the respondent to have 'the effect of subjecting the appellant to the costs of a meritorious • appeal, while .the decision ought to have beexi rested! on the ground we have before 'indicated, namely, that the court had power to enter axi' effectxx'al ¡decree by compeling the parties toi undo' what -they had wrongfully clone, or .compel them to answer in damages therefor. * * * In Mills v. Green, 159 U. S. 651, 16 Sup. Ct. 132, 40 L. Ed. 293, the court used) this language: Tf a defendant, indeed, after notice of the fifing of ¡a bill ixi eqxxity for an -injunction' to restrain the building 'of' a house, or ‘ c'f a raili'oad, or of any other structure, persists in completing the building, .the -court nevertheless is not deprived of the authority, whenever an 'its opinion justice requires -it, to -deal -with- the rights of the parties ate they .stood -at the ‘commencement of the suit, and to -compel the defendant to undo -wh-at he has 'wrongfully don-e -since 'that time, -or to -answer in ■damages..’ See, also, Tucker v. Howard; 128 Mass. 361.; Pennsylvania Co. v. Bond, 99 Ill. App. 535; Tate v. Field, 36 N. J. Eq. 35, 37 Atl. 440. The fact that no .temporary injunction has been granted does not affect the kind or the extent of the remedy •to which the ¡plaintiff is entitled upon establishing- his- right at the hearing on the merits. Tucker v. Howard, supra.”

[5] As ¡held! in the Green- ¡Cais-e, -it i-s immaterial, u-poo this- motion, whether 1a temporary injunctitti was granted,1 -oir not — in fact, it is immaterial -whether it was asked for. Respondents were put upon their notice when the action w-as brought; they proceeded at tlieir -peril. (Njo injunction; being granted1, tihey 'were at perfect liberty -to -go 'ahead and- perform the contract, knowing that, if the court finally ¡held that the injunction should) baVe been granted, •wllmt they have -done cannot land -will not be undlone, but that appellants would be remanded to seek relief in mo-ney 'damages. They proceeded with -the full knowledge that if they performed the -contract an-cli it should1 eventually be held inv-al-i-d, the proper parties would 'be l-iable to respond1 in damages.

It hag been ¡suggested that the case of Carr v. City of Montesano, 76 Wash. 380, 136 Pac. 363, is analogous to the -case nlo'w before us, and should be recognized as -controlling herein, -being later in date than the Green Case. An examination of the -Carr Case shows that there is- no 'similarity 'between the facts' therein and the facts in the -case before us. The ¡Carr 'Case was 'brought against the city, its .treasurer and .deputy treasurer, to restrain the paying of a warrant. The -warrant -was issued in payment of a ¡claim- that was oo-ncediedly valid, but the contention- ¡was that the warrant brought -the indebtedness, of the -city a-bo-ve the -constitutional limit. N-o -service w-as made- upon the city treasurer; the only -issue joined being with the city. The trial court held that the -city had no-t reached its constitutional limit o-f inidieb¡tediness, and ¡dismissed the action. Plaintiff appealed'. After -such appeal taken there was a showing made that the -warrant had been -paid, -and a motion was made to- -dismiss up-on- the ground- that the controversy had ceased. It 'dearly appeared that .there were no other outstanding warrants. The warrant wias paid by the cit)r treasurer, .who hadi -not been made a party to’' the action.. The .party to. whom the warrant was paid was not a party to the pending appeal, and ¡no question as to him was involved. Upton such facts, the court held that the question of the legality iof the warrant had1 become a moot question. In view of the fact that the bridge company is1 a party to. this, action, and that, unle'ss barred) by the judgment entered herein, appellants may have a right to. recover against such, bridge • company, as wias done under like circumstances1 ini the Wisconsin case, -it is clear that the Carr Case is not analogous to this, case.

It is also suggested that the still later case of Barber Asphalt Paving Co. v. Hamilton, 80 Wash. 51, 141 Pac. 199, is analogous1 to and controlling in this case. A study of the facts in the Hamilton 'Case will show that the decision therein wias based upon facts not to be found in the case now before us. In the Hamilton Calse plaintiff hadi bid for certain work to. be dione for the county of which defendants were commissioners; after it made its bid and was entitled to a contract — in fact it Sis claimed that a1 contract had been let to plaintiff — the county, through defendants, attempted to cancel plaintiff’s contract, to- reject all bids theretofore madie, to, readvertise for bidders, and to enter into a new .contract. The plaintiff brought this action to restrain defendants, as commissioners from entering into a contract with any .other and from cancelling the contract which they claimed1 hadi been entered into. with, plaintiff 'Company. The defendants pleaded] certain matter in the way of .defense which they claimed showed that the contract with, plaintiff was not binding upon them, and, by a second dr supplementary ans'wer pleaded that they had' rCadivertised for 'bids and had entered into ,a contract with a third' party who had entered! upon the performance of the work; and defendants further alleged that such, contract was then approximately .performed. On the final hearing in the 'trial Court it appeared that the 'check which accompanied plaintiff’s, bid had’ been returned to plaintiff and accepted by it, and the defendants moved in the trial court for a dismissal of the action for insufficiency of evidence and because the complaint did no't state a cause of action. Su'ch motion was granted1, and the plaintiff appealed. A motion to, dismiss the appeal was made upon the ground that the controversy had ceased; that the right to 'injunctive relief no. longer existed; that the questions presented were mido* questions, and upon other ground's. Two question® were considered by the appellate court: First, whether the right to injunctive relief had 'ceased; and, second, whether .the complaint — to which neither -the state nor the county -w¡as a party — stated a cause of 'action for damages.- Tire court held rightfully that all right 'to injunctive -relief badl ceased to exist, and that it 'was i-mpossiilb-le tc' undo what had been done, which could only be undone by the tearing- up of the work that had been performed by the second contractor, and. this .public policy would forbid. There was- thus left but the question -as. to whether, as against any party to such action, there would rest a right of action f'or damages. If not, -it was clear there 'was but a moot question. The court -calls specific attention to the fact that the only parties to the action were the board of commissioners; that there was no claim that, upon the remanding of the case, -damages could'be sioiughit against the county commissioners personally — “in fact the appellant disclaims the right to any relief against the commissioners personally”; and that -there 'wias no la-l-legatioinK such as' would show that the plaintiff had been damaged, and therefore had- any right of action ag-ain-st an-ybodly for damages., even iif 'the parties ¡against whom h.e might recover had been made parties' to 'the then, pending .action. The court call's attention to the necessity of either .the state or the county being a party defendant to an .action for .damages, and- to the further fact that the plaintiff did n'ot request any amendment or offer to amend its complaint so -as to .state facts .showing actual •damages o.r isio as' to ¡bring before the court either the state, “-which the plaintiff believed the proper party to respond in damages,” or the county, “which the [trial-] co-urt evidently believed the proper-party -to respond in damages.” The court calls -attention to ¡the fact that this failure tq allege -any damages or to seek to ¡make party to the action those who would be liable in .damages-, -if a'ny, “-clearly distinguish that -case from ¡the situlations presented' ini Green v. Okanogan County * * * and Graff v. Tacoma [61 Wash. 186, 112 Pac. 250].” The -court further calis- attention- to the if-act that plaintiff did' not ask the appellate -court to remand so- that the complaint coul-d' !be -am-ended. All 'the above shows that, under facte s-uc-h as we have before -us, -we have a -ca-se ¡coming absolutely under the rule announced in the -Green Case .and in no respect -controlled' by the Hamilton 'Ca-se.

[6] Our ¡Colleague suggests that the facts, as allegad by plaintiffs, -involve no violation of public policy. -Even though .a violation of some ¡public right or principle of public policy were an essential basis for plaintiffs’ right to relief, a fact which we do not concede, yet there is not lacking allegations of facts showing siuch a violation. - Plaintiffs allege -numerous violations of those provisions cif th-e Bridge Law (chapter 106, Laws 1915) ¡which are intended for the protection lof public rights.

The motion to dismiss is denied.

SMITH, J., concurs in the conclusion.