Engstad v. Dinnie

76 N.W. 292, 8 N.D. 1, 1898 N.D. LEXIS 3

• Court: North Dakota Supreme Court
• Decided: June 4, 1898
• Status: Published

Opinions

Wallin, J.

This .action was brought by resident taxpayers of the City of Grand Forks to enjoin said city, and its officers, who are made defendants, from completing the erection of a certain brick building, and placing therein certain machinery, and paying for the same out of the city treasury, which building and machinery are intended to be used, when completed and furnished, as an electric light plant to be owned and operated by said city. The action was tried without a jury, and resulted in the entry of a judgment in the District Court dismissing the action, with costs against the plaintiffs. The abstract of the record filed in this Court is voluminous, and the plaintiffs’ attorneys have assigned a formidable array of errors in their brief, but for the purpose of disposing of the case we have not found it necessary to pass upon any question which is not directly related to the power of the city council to contract for the electric light plant, and pay for the same out of the general fund of the city. No claim is made that the fund to pay for the plant is to be derived from any special fund arising upon the sale of bonds; on the contrary, the contention of counsel for the respondents is that the building and machinery can and will be paid for out of the general fund of the city.

To develop the pivotal question in the case it will be necessary to mention only certain facts disclosed by the record, and with respect to which there is no controversy between counsel. It is conceded that the City of Grand Forks, through its officers, and pursuant to certain bids which had been previously made in response to proposals for bids made in behalf of the city, did, on the 26th day of January, 1898, enter into certain contracts in writing as follows: One of said cohtracts was made by and between the City of Grand Forks and James Dinnie, whereby it was agreed that said Dinnie, for a consideration of $2,665, to be paid by tire city, should erect and build a brick building for the city in accordance with plans as stated in said contract, the said building to be used as a part of an electric light plant to be owned and operated by said city. The other of said written contracts was made and entered into between the City of Grand Forks and the firm of W. F. Grey & Co., and whereby said firm, in consideration of the sum of $12,703, agreed to be paid by the city, undertook to furnish and place in said brick building a dynamo and certain machinery and appliances, as stipulated by the contract, the same to constitute a part of said electric light plant. It is conceded that prior to the commencement of this action said contracting parties, viz. James Dinnie and said firm of W. F. Grey & Co., had respectively entered upon the performance of their contracts, and had performed a part thereof, and the city had allowed a claim or bill presented on account of said contract with Dinnie, and issued and delivered to said Dinnie á city warrant therefor for the sum of $1,168.16; and the city had also issued and delivered to said firm of Grey & Co., on account of material furnished under said contract, a city warrant for $130. The right of the City of Grand Forks, which is organized under Chapter 28 of the Political Code, to enter into the contracts we have mentioned, is broadly challenged by the plaintiffs’ counsel. It is conceded that among the powers expressly conferred upon the city is that of providing for the lighting of the city. Rev. Codes, § 2148. The contention is that the city in attempting to exercise this power has wholly failed to conform to plain charter requirements, which are made prerequisites to its exercise, and without which the said contracts could not lawfully be entered into, or .the plant be lawfully paid for out of the general fund of the city, or at all. In a nutshell, the claim is made in behalf of the plaintiffs that no sum or amount whatever was ever lawfully levied or law- fully appropriated by the city council to meet and defray, out of the general fund, the large expense necessarily included in the erection and furnishing of an improvement within the city such as that contemplated by the contracts we have mentioned; and consequently that the city has prematurely and without authority of law entered upon the enterprise of providing light for the city by the erection of the building and equipping the same as stated in said contracts.

We remark first, although the point was not made by counsel, that we question whether, under said charter, it would be lawful either for the city to levy or appropriate funds to build and equip an electric light plant to be owned and operated by the city, until such plant had been authorized by some ordinance passed and adopted for that purpose, and which should make provision for maintaining and operating the plant after its construction and equipment. No such ordinance was ever passed by the city council. As has been seen, the charter clothes the city council with the general power to provide for lighting the city; but the charter nowhere provides the mode or points out the manner of making such provision. In such cases the charter expressly provides as follows: “When, by this chapter the power is conferred upon the city council to do and perform any act or thing, and the manner of exercising the same is not specifically pointed out, the city council may provide by ordinance the details necessary for the full exercise of such power.” Rev. Codes, § 2333; Id., § 2148, subd. 77. The manifest object of this statutory provision is to prevent, and not permit, the council to actually exercise large grants of authority without specific regulations of the same first having been made by some-enactment which has the force of law. Hence the requirement that either the charter or some ordinance shall point out the manner of exercising power specifically granted in the charter. A mere resolution of the council does not suffice to meet this requirement. We mention this matter here, not as the crucial point in this case, but to call attention to the fact that when the action hereafter mentioned was taken by the city council, which bears upon the electric light plant in question, no ordinance had ever been adopted by the city council declaring that the city should build, own, or equip an electric light plant, or providing for the maintenance or control of any such plant. As has been seen, it is not pretended in behalf of the city that the funds necessary to build and equip the plant were raised or expected to be raised by the sale of bonds, or from any fund other that the general fund of the city; and much evidence was offered at the trial in behalf of the city for the purpose of showing that the tax levy of September, 1897, for the general fund, when reinforced by certain back taxes, collected and uncollected, would furnish sufficient funds to defray the ordinary expenses of the city, and also to leave an unexpended balance sufficient to build and equip the plant in question. But, in the view we are compelled to take of the facts and issues embraced in this record, it is not, in our opinion, important to inquire whether or not the general fund was replete, or whether there was or was not on hand and available to build and equip the plant an amount of revenue, either levied or collected, belonging to the general fund of the city. We are far from being convinced by the evidence in the record that the condition of the. city treasury was such that at the time said contracts were entered into the city had funds on hand belonging to the general fund sufficient in amount to meet the current expenses of the city, and build and equip an electric light plant such as was contracted for by the city. But, if such funds were available, we should still hold that the contracts in question were ultra vires. In our opinion, the objections to these contracts as binding obligations are radical and insurmountable.. They were entered into at a time and under circumstances which are fatal to their validity. The contracts were without authority of law for the reason that no such improvement as that comprehended in the erection of a brick building and its equipment, with the machinery mentioned, was ever authorized or provided for either by an annual appropriation bill for said city for 1897, or by the tax levy of 1897 for the then current fiscal year. The city council of Grand Forks, at its regular meeting in September, 1897, adopted a certain levying resolution, which is the only attempt to levy a tax which was made by the council in said year. No mention was made in said resolution of any improvement of the character of that contracted for later by said written contracts, nor was the matter of an electric light plant referred to in the resolution. The wording of the said resolution is as follows: “Be it resolved by the city council of the City of Grand Forks, North Dakota, that there be, and is hereby, levied on the property subject to taxation in the City of Grand Forks, North Dakota, as taxes for the fiscal year commencing September 1st, 1897, and ending August 31st, 1898, the sum of fifty-two thousand dollars; said amount to be divided as follows: For general fund purposes, the sum of $35,000; for interest fund purposes, $15,500; for sinking fund purposes, $1,500.” It further appears that said amounts were extended upon the tax books of the county by the county auditor. No annual appropriation bill was passed or adopted in said year, either prior to or concurrently with said levying resolution of September 9, 1897. Nor was there an attempt to pass any ordinance embracing an annual appropriation bill by said city council in said year other than a certain' alleged enactment which was adopted by the council on the 18th day of December, 1897, and which reads as follows:

“An ordinance making the annual appropriation for the fiscal years 1897 and 1898, entitled “The Annual Appropriation Bill.”

“Be it ordained by the city council of the City of Grand Forks, North Dakota:

Section 1. Salaries and Expenses. There is hereby appropriated from the general fund of said city the Mtm of fifty thousand dollars ($5°,ooo.°o), or so much thereof as may be necessary, for the purpose of paying salaries of city officers, defraying the expense of erecting, completing and installing an electric light plant for said city, and the operation expense of the same during said fiscal year, and the general and incidental expenses of the city government, including the payment of city orders out of the general fund.

“Section 2. Waterworks and Filtration Plant. There is hereby appropriated the sum of fifteen thousand ($15,000.00), dollars or so much thereof as may be necessary, for the maintenance of the waterworks system and filtration plant.

“Section 3. Interest. There is hereby * appropriated from the interest fund the sum of fifteen thousand five hundred dollars ($15,-500.00), or so much thereof as may be necessary, for the payment of interest on city bonds and warrants.”

Perhaps the most striking feature of this alleged annual appropriation bill is the date of its adoption (December 18, 1897), when considered with reference to the alleged levy of the annual taxes for the same fiscal year, which, as appears, occurred on September 9th preceding the adoption of such alleged appropriation bill. The city charter declares that the annual appropriation bill shall be an ordinance, and further expressly declares that the city tax levy shall be “based upon the annual appropriation bill for the year.” Rev. Codes, § § 2190, 2262. While it is true that the provisions of the statute with respect to the time within which any proceeding connected with the tax levy must be taken are to be construed as directory, and not mandatory, yet it is also manifestly true that the annual appropriation for the fiscal year must precede or be concurrent in time with the levy, since the levy is based thereon, and can lawfully be based on no other foundation. Section 2262 declares : “The city council shall at its regular meeting in September of each year or within ten days thereafter pass an ordinance, to be termed the annual appropriation bill, in which it may appropriate such sums of money as may be deemed necessary to defray all necessary expenses and liabilities of such corporation; and such ordinance shall specify the purposes of which such appropriations are made and the amount appropriated for each purpose. No further appropriations shall be made at any other time within such fiscal year unless the proposition to make each appropriation has been first sanctioned by a majority of the legal voters of such city either by a petition signed by them or at a general or special election duly called for that purpose.” A mere reading of this section of the statute in connection with section 2190, Revised Codes, suffices to demonstrate- that the tax levy and the annual appropriation for city expenditures for a given fiscal year are inseparably connected with each other. The right to lay burdens upon property owners by a city tax levy is conditioned by the charter upon the passage of an ordinance which shall specify the several purposes for which the tax to be levied is to be expended, and the specific amounts which shall be devoted to each purpose. The attempted levy of taxes in the City of Grand Forks in 1897 was, therefore, abortive, and without legal validity, because the levying resolution was not authorized or supported by any existing annual appropriation for the expenditures of the city for the then current year. The case falls within the principle laid down by this court in Shuttuck v. Smith, 6 N. D. 56, 69 N. W. Rep. 5. It follows from what has .been said that at the time the contracts in question were entered into the city had not made provision for any expenditure of city funds for the purposes of the contracts, nor had the city levied any taxes to meet the expense and cost of the electric light plant, nor had the city levied any taxes for the ordinary expenses of the year in question. Under the circumstances existing when the contracts were signed, there was no valid tax levy out of which the' plant could lawfully be paid for; much less was there any existing levy for the specific improvement which we are considering.

We now turn to an independent ground upon which the illegality of the electric light enterprise is, if possible, more transparently conspicuous. The trial court -has found, and the fact is conceded, that a majority of the taxpayers of Grand Forks have never by vote or petition given their sanction to any appropriation for an electric light plant to be owned and operated by the city. The fact is pertinent, because the statute (section 2262) inhibits the city council from making any other or further appropriations of city money for the fiscal year, after the annual appropriation bill has been enacted, without the approval of a majority of the voters. As we have seen, the annual appropriation bill is expressly required to be adopted prior to or at the time of the tax levy, and we have also seen that the statute, by its requirements, stands directly in the way of passing such annual appropriation bill at any later date, and all further appropriations after the tax levy are in terms prohibited by the charter, unless the same have the special sanction of the voters. These provisions of the organic law of the city are unambiguous, and their meaning is not obscure. They plainly show that the alleged ordinance adopted by the city council on December 18, 1897, and denominated an annual appropriation bill for that fiscal year, is utterly void, and in the teeth of express charter provisions declaring that no such appropriation bill could lawfully be enacted by the city council. Section 2262. R is not pretended that , the, enactment of December 18th has ever furnished the basis for any tax levy, or that it is legally possible that it could do so at the time it was adopted. At that time, and long prior thereto, the city and school tax levy" for the fiscal year had been certified to the county auditor, and the same were on the tax list, and in the hands of the county treasurer for collection. This alleged annual appropriation, for reasons already stated, is meaningless, and utterly void, inasmuch as it did not and could not, when enacted, furnish a basis for a city tax levy, which, under the charter, is the sole function of an annual appropriation bill for any city which is organized under Chapter 28 of the Political Code. But this belated and abortive measure, even had it been enacted within the limited time, and had the same in fact furnished the foundation for the annual tax levy of September 9, 1897, would not constitute any legal basis upon which the electric light project in question could rest or find warrant of authority. A careful reading of the enactment of December 18th reveals the important fact that the same nowhere undertakes to appropriate any specific sum or amount as an expenditure for an electric light improvement for the City of Grand Forks. Its terms warrant the expenditure of no sum or amount which is stated or made definite. The law requires not only that an annual appropiration bill shall “specify” the purposes for which the appropriation is made, but it must go further and specify “the amount appropriated for each purpose.” Rev. Codes, § 2262. The measure we are considering, adopted December 18th, assumed to appropriate $50,000 out of the general fund of the city for the purpose of paying salaries, and the incidental expenses of the city government, including the payment of city orders; and also, incidentally, for the purpose of “defraying the expense of erecting and completing and installing an electric light plant for said city, and the operating expenses of the same during said fiscal year.” From this language it appears that, while the city council attempted to appropriate a gro$s amount ($50,000) from the general fund of the city for certain purposes mentioned, it does not specify the sum or amount which each or either purpose is to receive. From this language it is impossible to determine how much of this appropriation may be expended for any one purpose named in the enactment. We are far from holding that in an appropriation out of the general fund of a city to meet the ordinary expenses incident to carrying on the city government each item of expense must be anticipated, and stated in dollars and cents in the appropriation bill. No such rigid and fanciful requirement as that suggested is made by the law, and we certainly shall not attempt to read into the statute by construction any such embarrassing rule. But a costly improvement such as that contemplated in the contracts in question does not fall within the ordinary operating expenses of a city organized under the Code, The statute differentiates improvements from ordinary expenses, and places them in a class by themselves. The statute meets this ■feature of the case by an express provision which forbids the city council or any officer of the city from adding an expenditure upon any ‘'improvement” of the city over and above the amount named in the annual appropriation bill. It declares: “And no expenditure for an improvement to be paid for out of the general fund of the corporation shall exceed in any one year the amount provided for such improvement in the annual appropriation bill.” Rev. Codes, § 2263. This language imports that city improvements, such as expensive public buildings, must be provided for in terms and in amount by an ordinance embracing the annual appropriations of the funds of the city. When so mentioned in the annual appropriations, the law, as has been shown, further requires the council to levy the sum appropriated upon the taxpayers of the city, and then no other expenditures therefor can be made until an additional sum is appropriated and levied in the succeeding fiscal year, except by the express sanction of the voters. We can think of no greater abuse of corporate power by the council of a city under the restrictions of said charter than would be involved in expending the funds of a city in the erection of costly public buildings and improvements without either passing an ‘ ordinance authorizing the construction of such improvements, or an ordinance appropriating any specific amount to be expended in their construction. The notion can never be tolerated that a city council may, without let or hindrance, from the law or the taxpayer, and at its election, proceed to deplete the general fund of the city by withdrawing therefrom sums of money indefinite in amount, with which to build costly public improvements, which improvements have had no legal authorization either fróm the council or the taxpayers, and for which no specific sums of money have ever been appropriated or levied. Once concede this power in the council, and it follows as a sequence that any city council may exhaust the general fund at pleasure by expenditures for public improvements which have no legal authorization and for the construction of which no funds have been provided. Fortunately, no such construction of the law is permissible in view of its very explicit provisions to the contrary. The conclusion which follows from the construction wc have placed upon the city charter is this, viz: The electric li£ht improvement in question never having been authorized by any legal enactment, and no appropriation therefor ever having been lawfully made, and no lev)'" of taxes to defray the expenses of building and operating the same ever having been made, the expenditures therefor are wholly premature, and totally without warrant of law. The city was without power either to contract for, build, or operate the improvement in question. ■ Section 2264. In short, all of its contracts and disbursements in connection with the plant were contrary to the statute, ultra vires, and therefore void; and hence all further proceedings and disbursements under the contracts should have been enjoined by the trial court.

One further matter remains to be considered. The record discloses that the bids of said contractors to do the work specified in their contracts were accepted on the 18th day of November, 1897, by said city council, and that between that date and the time of the commencement of this action the contractors were not interfered with in any manner by the plaintiffs or others, but were permitted to proceed, and formally enter into said contracts, and thereafter were permitted to enter upon the performance of the work, and enter into divers engagements with other parties for work and material and machinery necessary to the full performance of said contracts. It further appears that said contractors, after their bids were accepted, and in anticipation of litigation to grow out of the enterprise, did do certain work and furnished certain material of small value for the express and avowed purpose of inviting any litigation which the plaintiffs or the public might contemplate on account of said projected enterprise; and that, no suit being brought on such invitation, said contractors did ’considerable other work before the suit was brought, and had been engaged in the prosecution of the work for the period of about one month prior to the commencement of this action and after the contracts were signed. Upon this state of facts counsel for the city strenuously contends that an equitable estoppel against the public has arisen on account of its laches, which bars this action. It should be borne in mind that the plaintiffs, by this action, are not seeking to vindicate any merely individual rights peculiar to themselves. Plaintiffs appear to have no rights to protect except those common to all the taxpayers of the city. In actions of this character, under the prevailing modern practice, a resident taxpayer is in the attitude of a champion of public interest. The taxpayer here represents the same rights and interests which at common law could only be vindicated at the suit of the commonwealth represented by its accredited representative, the attorney general, or other officer of like authority. As against the public, the doctrine of equitable estoppel by laches is very rarely applied, and then in extreme cases only. See Schumm v. Seymour, 24 N. J. Eq. 143. The facts of the cáse at bar certainly furnish no sufficient grounds upon which the defendants can invoke the doctrine of estoppel by laches in the interests of the contractors who are not parties to the suit. Said contractors are in no position to invoke the doctrine for a double reason. They are chargeable with notice that the charter of the city, by its express terms, prohibits the council from entering into any contract for an improvement, or expending any money therefor, unless an appropriation therefor shall have been previously made. Rev. Codes, § 2264. In addition to this statutory notice, it appears that said contractors had been expressly warned that the project of building and furnishing an electric light plant for the city would be resisted, and that, if they attempted to proceed with it, they would be enjoined by the courts. Being thus warned, the contractors did some work- on purpose to invite litigation. Under these circumstances it cannot be urged in behalf of the contractors that they are victims of anything except their own misplaced confidence in promises made in behalf of the city, when both parties to the same were fully aware of their illegal character. Upon this point we quote from the opinion of the Court in one of the cases cited by counsel. Tash v. Adams, 10 Cush. 252: “All parties, therefore, have acted at their peril, with full and timely notice that the proceedings of the town in appropriating the money were to be drawn in question before the proper tribunal.” The contracts with the city for this improvement, made, as they were, in advance of an appropriation or levy of taxes therefor, were of a class of contracts which are expressly prohibited by the charter. Rev. Codes, § 2264. In this class of expressly prohibited contracts the retention of the fruits of the contract does not subject the corporation to liability. Goose River Bank v. Willow Lake School Twp., 1 N. D. 26, 44 N. W. Rep. 1002. See, also, Tennant v. Crocker (Mich.) 48 N. W. Rep. 577; Bladen v. Philadelphia, 60 Pa. St. 464; City of Litchfield v. Ballou, 114 U. S. 190, 5 Sup. Ct. 820. Our conclusion is that the learned trial court erred in entering its judgment of dismissal. The judgment will therefore be reversed, and a new judgment entered in favor of the plaintiffs granting the relief prayed for in the complaint. It will be so ordered. All the judges concurring.