County of Cass v. County of Sarpy

92 N.W. 635, 66 Neb. 473, 1902 Neb. LEXIS 455

Opinion

Ames, 0.

This case is before ns on a rehearing granted from a former decision published in 63 Nebr., 813. Counsel for both parties have expressed their concurrence in that opinion, and further reference to it would be unnecessary but for the fact that counsel for Kearney county, intervening as amici curia}, still insist that the proviso added to section 88 of the statute

Footnotes

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* by the amendment of 1899, is applicable to such bridges only as have been built pursuant to a joint contract between the counties interested. As pointed out in a former opinion, and as is contended also by counsel, to adopt such a construction would be to bring the proviso into conflict with section 89, or to regard it as an attempted amendment thereof, and as being, therefore, unconstitutional and void. So to do would be to commit an offense of which, so far as we know, no court has ever been guilty. It is a rule without exception that when one of two or more interpretations of an ambiguous statute will bring it into harmony with the constitution, and the other or others will cause it to conflict therewith, the former and not the latter will be preferred. At the time of the former hearing the only questions discussed were those then decided, but counsel for defendant in error were of opinion that a consideration of other provisions of the statute than those then construed would be productive of a different result, and a rehearing was granted for the purpose of enabling the parties to present their views with respect thereto. Sections 83, 84, 85 of the statute, as construed by this court, limit the power of counties to erect or repair bridges or approaches thereto, in instances in which the cost thereof shall exceed $100, by requiring contracts therefor to be let to competitive bidders after the adoption of the plans and specifications of the proposed works, and after notice of such letting by newspaper advertisement in a specified manner. The first mentioned of these sections contains a proviso that for the building of all bridges in any county that may be required to be constructed in any one year, the county commissioners may let a single contract in the manner to which allusion has been made. The case has in this regard taken a curious turn. It was announced on the former argument by counsel, amici curies, and, as we understood, with the consent of other counsel, that however faulty, on account of omission, the petition should he found to he, it should he treated hy the court as sufficiently charging that the repairs, to recover on account of which the action was brought, were made pursuant to specific contract by the' plaintiff county. Upon the later argument it was asserted that this concession was made without the consent or knowledge of counsel for the defendant county, who repudiated it. We do not suppose that there,was any intentional attempt to mislead the court, but feel bound under the circumstances to correct what we are now convinced was a mistaken inference of our own. On the present hearing it was conceded that although the pleading may, in this respect, be sufficient in any view of the case, yet as a matter of fact a specific contract for the repairs in controversy had not been made, and counsel desired to be advised whether a yearly contract for repairs, made in the manner prescribed in the proviso, would be valid; the fact being also admitted that the repairs in question were 'made pursuant to such yearly contract.

A majority of the commissioners .of this department are of the opinion that this concession is fatal to the right of recovery in this action. In other words, that the plaintiff, in order to succeed, must allege and prove that the work was done pursuant to a specific contract therefor, entered into in such form and manner as would have been requisite to its validity if the bridge had lain wholly within Cass county, and its maintenance had been a charge upon its funds exclusively. In this view of the matter, the safeguards afforded by the above-mentioned statute are intended as a protection against the improvident expenditure of the public funds, and are available as well by a county that may be called upon to partly reimburse such expenditure as by the taxpayers of the county in which the outlay is originally made. In other words, there being no common-law liability, that the county seeking contribu tion can succeed only by alleging and proving a lawful expenditure for the object in view, and that there can be no such lawful expenditure except pursuant to a contract entered into at a time and in the manner prescribed by the statute relative to the making of repairs in which the plaintiff county is solely concerned. To the writer, this argument is far from conclusive or satisfactory. The making of the repairs was not an unlawful work, but a lawful work done in an irregular and unlawful manner. The plainest dictates of justice forbid the authorities and taxpayers of Cass county, after having permitted and encouraged this work to be done, and after having accepted and enjoyed the fruits of it, to deny the bridge builders a reasonable compensation therefor. But by the same circumstances which rendered Cass county liable, Sarpy county became equally bound to make just contribution.

We are not shaken in our former opinion as to the validity and construction of the statute, but in the foregoing majority view of the matter and because of the admission that the petition can not, in that view, be effectually cured by amendment, it is recommended that this court recede from its former decision, and that the judgment of the district court be affirmed.

Duffie and Albert, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, it is ordered that this court recede from its former decision, and that the judgment of the district court be

Affirmed.

The following opinion on rehearing was filed November 5,1903. Judgment below reversed:

Commissioner’s opinion, Department No. 1.

Ames, O.

This case has! been twice previously before this court. Tbe first decision (63 Nebr., 813) reversed tbe judgment of tbe district court and remanded tbe cause for further proceedings, and tbe second decision (ante, p. 473) affirmed tbe judgment of that court. This diversity of results grew out of differences of opinion among tbe judges and commissioners respecting tbe inquiry whether the county of Sarpy is relieved of obligation to contribute towards defraying tbe expenses of tbe repairs, to recover which tbe action is brought, by tbe fact that Cass county neglected to procure the work to be done by letting contracts therefor to competitive bidders, after advertisement, in tbe manner required by sections 83-85, of chapter 78 of tbe Compiled Statutes (Annotated Statutes, secs. 6080-6082), entitled “Roads.” In consequence of tbe doubts thus arising, tbe case is now before us after argument upon a second rehearing.

■ So far as tbe writer is advised, there has never been any contrariety of views among tbe members of tbe court concerning any other matter litigated or decided on tbe two former occasions, and an additional recital of tbe facts and matters out of which the controversy arose is unnecessary. Since tbe latter of the two previous decisions, this department and the judges have bad occasion, in tbe case of Clark v. Lancaster County, to make a thorough and exhaustive review of tbe principles and authorities touching tbe question whether one who furnishes labor and materials for tbe creation of a public work, in good faith, but in the absence of a contract such as is required by statute., is entitled to recover tbeir reasonable value; and by a decision filed on tbe 17th day of September, 1903, the conclusion is reached that, in tbe absence of a statute expressly or by necessary implication , denying such right, he is so entitled. This decision is necessarily conclusive of the controversy now before us. It is not disputed that the repairs on account of which a recovery is sought, were a lawful public work which Oass county was authorized to have made, and the sole objection which the defendant makes upon this branch of the inquiry is that they were not made in a lawful manner. But in the light of the last above mentioned decision, it must now be conceded that they were made in such manner that the plaintiff was obligated to pay their reasonable value, and in any event, it is only upon the basis of reasonable value that the latter county is entitled to demand contribution.

We think there is no merit in the contention that a different rule should be applied in such a case as this, than in one in which the public work lies wholly within the county causing it to be made. The sole inquiry in this regard, as we construe the statute, is whether the county constructing the work has done so in such a manner as to be legally obligated to pay for it. If it has done so, then its treasury, citizens and taxpayers are entitled to be reimbursed according to the measure prescribed by the statute.

It is recommended that the judgment of this court of November 19,1902, be vacated and set aside, and that that of February 6,1902, be reentered and reaffirmed.

By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of this court of November 19,1902, be vacated and set aside, and that the judgment of the district court be

Reyebsed.

Compiled Statutes, ch. 78, Cobbey, Annotated Statutes, sec. 6086.