Miles v. Holt County

125 N.W. 527, 86 Neb. 238, 1910 Neb. LEXIS 79

• Court: Nebraska Supreme Court
• Decided: March 10, 1910
• Docket: No. 15,876
• Status: Published

Opinions

Letton, J.

In January, 1905, the county board of Holt county took action under the prolusions of chapter 75, laws 1903 (Ann. St. 1903, secs. 10644-10691) commonly known as the “Scavenger act”, to enforce the collection of delinquent taxes against real estate in that county. The act provides for the publication of a notice of the filing of the petition in the statutory action in the district court, and for a description of the lands or lots affected to. be published as a part of the notice. The act also provides (section 10650) : “The county commissioners of each county shall designate the neAVspaper in which said notice, and in which all notices of tax sales made by the county treasurer hereinafter provided for, shall be published, provided, the county treasurer shall designate such newspaper where the county commissioners fail to do so.” The county treasurer, pursuant to the direction of the county board, prepared the petition required by the statute and the notice of the filing thereof. On the 21st of April, 1905, the county board designated the newspaper in Avhich the notice should be published, the record showing: “On motion the printing of the scavenger delinquent tax list.Avas aAvarded to the O’Neill Frontier.” The county treasurer, assuming that the county board did not “designate the neAVspaper”, as the statute required, on the 2d day of July, 1905, designated the Holt County Independent as the neAVspaper in Avhich the notice should be published, and gave the copy for the notice to the plaintiff, who is publisher of that paper, for the purpose of publication. The notice was so lengthy and contained so many descriptions that it was necessary to have the typesetting done in a larger place than O’Neill, in order to have the notice published within the statutory time. The plaintiff received the notice about 2 o’clock in the morning of July 2, and took it to Sioux Oity to be put in type. Prior to this time the Independent had published'in its account of the proceedings of the county board the resolution by which the Frontier was designated as the paper to publish the notice. Before giving the notice to the plaintiff the county treasurer consulted the county attorney, Arthur F. Mullen, and was advised by him that the designation by the county board as shown by the record of proceedings was not a legal designation, and that it was his duty to designate the newspaper in which the notice should be published.

On the 3d day of July an action in mandamus was-brought by the owner and publisher of the Frontier against the county treasurer to compel him to deliver the notice to him for publication. This writ Avas denied by the district court. On appeal to this court it was held, Albert, 0., writing the opinion, that, Avhile the relator Avas entitled to the publication of the notice under the facts shown, yet the district court Avas justified in denying the Avrit, because when the case Avas heard the time was too short for the Frontier to prepare and publish the list within the time required by law. State v. Cronin, 75 Neb. 738. It may be regarded as settled by this decision that, the county board having acted in the matter of designating the newspaper to publish the notice, the county treasurer, while authorized to prepare the notice and deliver it to the printer, had no right to divert its publication from the newspaper in which the county board had decided that it should be published.

The notice Avas published in the Independent, as was also, some time later, the notice of sale of the land and lots foreclosed upon by tax decree. No further action was taken by the county board respecting the publication of notice, Three extra copies of each number of the paper were furnished, as the statute provides, to the county clerk, the auditor of state, aud the county treasurer, and proof of publication was duly filed. After the decree was rendered many taxpayers paid the amount of the decree, including a docket fee of $1 upon each description. A large number of tracts upon which the taxes were not paid Avere sold to private bidders at the sale under the decree, and a large number of said tracts Avere bought in by the county board as trustee, under the provisions of the laAV. The record shows that the county board attended the sale for taxes day by day until the bulk of the lands had been disposed of; that the county collected large amounts of money as taxes, and that the county treasurer collected $4,263 docket fees, on the tax suit. All this money Avas turned into the general fund of the county. In State v. Fink, 73 Neb. 360, where it appeared that a notice of this nature had been irregularly published, it Avas held that the publication, under the liberal provisions of the statute, was sufficient to confer jurisdiction upon the district court to render the decree. So that the county received equal benefit from the publication in the neAvspaper of the plaintiff to that it would have had if the publication had been made in the Frontier.

If the eAddence of the plaintiff is believed, there was no collusion between him and the county treasurer, nor was the giving of the notice to him for publication the result of deliberate, wrongful action on the part of that officer, and this seems to be the finding of the trial court. The action of the treasurer Avas very severely stigmatized by Commissioner Albert in State v. Cronin, supra, “as a wanton disregard of duty and a reckless attempt to thwart the purpose of the governing body of the county.” It is noAV insisted that the evidence in this case, that his action Avas taken under the advice of the county attorney, was not before the court in that action, but, even so, we are inclined, in view of the evidence before us, to be somewhat skeptical as to there being any substantial doubt upon his part concerning the sufficient designation of the Frontier by the county board.

The question presented is whether or not one who furnishes material and performs services for a county under a void contract, from the result of which service the county has secured a financial gain, can be permitted to recover the reasonable value thereof, and, if so, what is the rule by which to ascertain such reasonable value.

• The defendant contends that this is an action upon contract, but we doubt whether the language of the petition is susceptible of this construction. It pleads substantially that the county determined to enforce all delinquent tax liens under the “scavenger act”, and directed proper action to be taken thereunder; that under said direction the county treasurer prepared and filed the petition in the district court; that he caused a notice in statutory form to be published- in the Holt County Independent, and that the county treasurer designated the Holt County Independent as the newspaper in which the said notice should be published; that the treasurer made this designation, and that plaintiff received the notice, and published the same in good faith; that the defendant and the county board of said county acquiesced in the publication of the notice during the four weeks that it was published, received and used copies of the same, acted under the decree, and ratified the publication by the plaintiff; “that the reasonable, just and true charge for publishing said notice for said four weeks in said newspaper was the sum of $2,669.50”; that by reason of the publication of said notice and the approval thereof, and the ratification thereof, and by reason of each and every one of the said acts, there became due to the plaintiff, and is due him for publishing said notice, the sum of $2,669.50. The second count in the petition is for the publication of the tax sale notice after decree, and is couched in like terms to the first count, except as to the time of publication and the amount due, Both counts allege the purchase of several hundred parcels of real estate by the defendant at the sale made under the notice and decree, and the realization of a large amount of money by reason of the same.

This can hardly be said to be an action upon contract. We think it rather to be an action for the reasonable value of the services performed. But the defendant contends that the plaintiff cannot recover in this case as upon an implied contract, because the treasurer had no authority to make the contract, and that, if the treasurer was not authorized to make the contract, then no liability can attach against the county upon any ground of implied contract; that all persons dealing with officers or agents of counties are bound to ascertain the limits of their authority or power as fixed by the statute or the organic law, and are chargeable with the knowledge of such limits, and that no estoppel can be created by the acts of such agent or officers in excess of their statutory powers, citing Hall v. County of Ramsey, 30 Minn. 68; Hampton v. Commissioners, 4 Idaho, 646, 43 Pac. 324; Bartholomew v. Lehigh County, 148 Pa. St. 82; Endion Improvement Co. v. Evening Telegram Co., 104 Wis. 432, and other cases.

The plaintiff on Ms part maintains that a distinction may be drawn between the principle of the cases above referred to and the instant case. He concedes that, where a public official has no authority under any conditions to request the performance of a service, such as the printing of an election notice or the proceedings of the board of supervisors, from which the public corporation gets no financial return or property, then the county or municipality may escape liability. But he contends that there is another class of cases which establish the principle that, where the county or municipality engages in a business undertaking of some kind, where there is no valid contract or where the public officer who makes the contract is authorized under certain circumstances to do so, but not under others, or where there is irregularity in malting the contract, bnt where the county or municipality received the money,- service or property of -another in a business way, and for its financial advantage, and to its profit uses the money or property or services of another, then in either of such instances the county or municipality must pay. It is also argued that, when a legal notice is given to a printer for publication, and nothing is said as to compensation, there is an implied contract to pay the legal rate, and counsel cites a number of cases to the effect that, where a fee is fixed by statute for the printing of a notice, the printer is entitled to it, even though it is sought by contract to limit his compensation.

We will first examine the cases cited by the county to support its contention that it is not liable for the publication of the notice. In Hall v. County of Ramsey, 30 Minn. 68, the action was for damages for breach of an alleged contract for publication by plaintiff of the delinquent tax list. We infer from the opinion that no publication had been made. The court held that under the statute the county'' commissioners were not authorized to make the contract for the breach of which the plaintiff sought to recover, and sustained a demurrer to the petition. Evidently this is not a parallel case. In Hampton v. Commissioners, 4 Idaho, 646, a county board made a void contract for the employment of the plaintiff as county attorney. The plaintiff’s claim was for $4,142 for legal service performed in one year for a county with a voting population of 780. The claim was for more than the combined salary of the attorney general and of the district attorney, who was the proper legal officer of the county. The - court held that the plaintiff could not recover upon an implied contract for services, for the reason that there' was no authority vested in the board to make the contract, but said, also.; “The doctrine that if a municipality obtain the money or property without authority of law, it is her duty to make restitution or compensation, not from any contract entered into by her on the subject, but from the general obligation to do justice which binds all persons, whether natural or artificial, does not apply here.” In Bartholomew v. Lehigh County, 148 Pa. St. 82, a sheriff, after having procured the publication of an election notice in four newspapers under a statute which provided the publication should be in “not more than four” newspapers, procured another newspaper to print the notice. After the county had paid the four newspapers first authorized as certified by the sheriff, the fifth presented a claim, which was refused. The court held that the sheriff could not bind the county for the cost of the publication in more than four newspapers, and that, if' the sheriff exceeded his authority, “it is a question between the plaintiff and that officer, and one in which the county of Lehigh has no concern.” It will be seen that in this case the county derived no substantial benefit from the publication, the requisite legal notices having already been published and paid for. In Endion Improvement Co. v. Evening Telegram Co., 104 Wis. 432, a county clerk had given to plaintiff for publication the usual election notice, and also, under a misapprehension of the law, the entire banking law, as a question to be voted upon. The court held that the publication of the banking law “was absolutely without authority of law, and not binding upon the county. * * * The clerk had no right to make any such contract, and* no duty rested upon him to act ás he did. * * * He stood as the mere agent of the county, with no power or authority to cause or contract for any publication except such as the law prescribed.” It is clear that no liability would attach to the county in such a case. The county received no benefit from the publication of the banking law, and the clerk had no more right to publish it than he had to publish a circus poster and charge it to the county.

In the case at bar the notice was a legal notice in all respects, and one from the publication of which the county received a substantial benefit, which clearly distinguishes it from the above cases, except, perhaps, Hampton v. Commissioners, supra, in which the language of the court seems to indicate it thought the whole transaction a fraud upon the people of the county. In this case the publication of the notice was not beyond the power of the county, bnt was strictly within its authority. The treasurer was the officer vested with the duty of the preparation of the notice, and, under some circumstances, the selection of the publisher. World Publishing Co. v. Douglas County, 79 Neb. 849. If the notice had been published by the properly designated newspaper, as well as by the plaintiff, it is clear there could be no recovery here, for in such case the county would receive no benefit from this publication, and the case would be the same as Bartholomew v. Lehigh County, supra, and the other cases cited by defendant; but the labor and material of plaintiff was productive of actual gain.

We are not very strongly impressed with the contention of plaintiff that the county authorities ratified the unauthorized act of the treasurer. Under the circumstances, the statutory time for publication having arrived, the county authorities were placed in the position of being compelled either to allow the publication of the notice, which was essential to the proceedings, to go on, or to lose a year’s time in the collection of delinquent taxes under the scavenger act. They were compelled by force of circumstances to receive the benefit of the publication or to jeopardize the interests of the county. At the same time we have come to the conclusion that the benefits of the unauthorized act of the treasurer in giving the notice to the wrong paper have been accepted and acted upon to such an extent as to make it unjust and inequitable for the county to refuse to pay for the services. It has for many years been the rule of this court that a public corporation or quasi-corporation, as against persons who have dealt with it in good faith and parted with value for its benefit, cannot set up mere irregularities in the exercise of power conferred in order to defeat recovery for the reasonable value of the services rendered or property furnished. 2 Dillon, Municipal Corporations (3d ed.) sec 336.

In Grand Island Gas Co. v. West, 28 Neb. 852, where a city entered into an illegal contract with a gas company; and a taxpayer brought an action to restrain the enforcement of the contract, and to restrain the gas company from prosecuting any suit at law or in equity to recover compensation for light furnished, it was held that the contract was illegal, and the taxpayer could maintain an action to caned the same, but that the city would be required to pay the reasonable value of the light furnished prior to the bringing of the suit. This Avas followed by Lincoln Land. Co. v. Village of Grant, 57 Neb. 70, in which case the rule is laid down: “Where a municipal corporation receives and retains substantial benefits under a contract which it was authorized to make, but which was void because irregularly executed, it is liable in an action brought to recover the reasonable value of the benefits received. In such an action it is unnecessary to establish a ratification of the contract.” In the opinion the case of Tullock v. Webster County, 46 Neb. 211, cited by defendant, was distinguished. In the latter case it was held that, as there was no power to make the contract, there could be no authority to ratify it, but in the Lincoln Land Company case, as in the case at bar, the power to contract for the service existed, but the manner of exercising the poAver as prescribed in the statute was not folloAved. The doctrine of this case Avas again considered in Rogers v. City of Omaha, 76 Neb. 187, Cathers v. Moores, 78 Neb. 17, and Nebraska Bitulithic Co. v. City of Omaha, 84 Neb. 375.

Second Congregational Church v. City of Omaha, 35 Neb. 103, was a case where an appeal had been taken by a landowner from the assessment of damages made by certain appraisers in proceedings taken by the city to change the grade of the street. The city attempted to defend against the claim for damages by setting up defects in the proceedings. The court said: “To us it appears unjust, inequitable, and contrary to every principle of right to permit the city, after it has damaged property by changing the grade of the street upon which it abuts,- to urge defects in its proceedings to defeat an appeal taken by the landowner to recover a fair compensation for the damages sustained. To do so would be to allow the city to take advantage of its own wrong after it had accomplished that which it undertook to do, the change of the street grade. Such a rule courts should not sanction.”

The same doctrine has been declared by the supreme court of the United States in Hitchcock v. Galveston, 96 U. S. 341, and is also approved in City of East St. Louis v. Gast St. Louis Gas Light & Coke Co., 98 Ill. 415, 38 Am. Rep. 97; Argenti v. City of San Francisco, 16 Cal. 255; Lines v. Village of Otego, 91 N. Y. Supp. 785; City of Valparaiso v. Valparaiso City Water Co., 30 Ind. App. 316; Butler v. Board of Commissioners, 15 Kan. 178; Coit v. City of Grand Rapids, 115 Mich. 493; County of Jackson v. Hall, 53 Ill. 440; Crump v. Board of Supervisors, 52 Miss. 107; State Board of Agriculture v. Citizens Street R. Co., 47 Ind. 407, 17 Am. Rep. 702; Louisiana v. Wood, 102 U. S. 294; Salt Lake City v. Hollister, 118 U. S. 263; Board of Commissioners v. Skinner, 8 Colo. App. 272; Central Bitulithic Paving Co. v. City of Mt. Clemens, 143 Mich. 259; Kramrath v. City of Albany, 127 N. Y. 575; Town of New Athens v. Thomas, 82 Ill. 259; Leonard v. Long Island City, 20 N. Y. Supp. 26.

We are of opinion that this case falls within the doctrine of the cases cited. The publication of the notice was Avitliin the poAver of the county, and its preparation and delivery to the proper neAvspaper Avithin the legal power and duty of the treasurer. The designation of the neAvspaper might or might not be within his authority, depending upon whether the county board had failed to act. He acted unlawfully in designating plaintiff’s neAvspaper and in delivering the notice to him for publication, but, plaintiff having rendered the services, and the county having received the benefit of the same, and having received a sufficient amount of money in payment for the publication of the notice from taxpayers to pay the reasonable value of the services rendered, it cannot now take the benefit of the plaintiff’s labor and material and escape all liability upon the plea of lack of authority upon the part of the treasurer. To allow it to deprive the plaintiff of his property in the manner sought, and under the circumstances shown, would be to countenance action on the part of a county which Avould be considered grossly reprehensible upon the part of an individual. We cannot permit such spoliation.

The question remains: Hoav shall the reasonable value of the services be ascertained? Is the statutory fee for printing legal notices to be taken as the value where no contract has been made? This is the measure applied by the district court, and, if it is the true .measure, the judgment must be affirmed. No evidence was offered as to value. Plaintiff’s counsel seems to rely with great confidence upon the case of Bee Publishing Co. v. Douglas County, 78 Neb. 244. The facts in the two cases, however, are totally dissimilar so far as the controlling features are concerned. The controversy as to the right of the Bee Publishing Company to publish, the proceedings first came before this court in State v. Fink, 73 Neb. 360, which was a mandamus suit brought to compel the county treasurer of Douglas county to deliver the notice to the World Publishing Company for the reason that on the 2d day of July, 1904, the Omaha Evening World Herald' had been designated by the board of county commissioners. The opinion shows that in the month of June, after the petition had been filed, and at a time Avlien the county board had taken no action, the county treasurer delivered the notice for publication to the Omaha Bee. When the case reached this court, the notice had been published, and, the time having gone by in which a new publication could be of any avail, the Avrit was refused. On the evidence then presented, the commission and court were of the impression that the designation made by the county board was made within a reasonable time, and that the designation by the treasurer was premature, but this point was not "decided, the opinion saying: “The most that the relator can contend for is that the ‘Bee’ was not designated in the manner prescribed by the act. Whether this was so or not, the issues in this case do not call upon us to decide.” The case cited and relied upon by counsel was a later controversy between the Bee Publishing Company and Douglas county over the amount claimed to be due for the publication of the same notice. The World Publishing Company intervened, contending that the county was not liable, for the reason that the Bee was not legally designated for the publication of the notice. This raised a direct issue as to the legality of the designation. Upon a consideration of the evidence then , submitted, both the district court and this court held that the designation of the Bee by the county treasurer was legal and proper, and that the publication was in all respects valid. This being so,- the plaintiff’s contention, that the holding in that case that the printer was entitled to the statutory fee governs this case, cannot be sustained. In that case the designation was legal. In this case it was illegal. In that case the recovery is based upon the contract. In this case it is based upon the doctrine that one shall not take and keep another’s property inequitably, even though no legal right to recover exists. While the action is legal in form, the doctrine upon which this and other courts have allowed recovery in such cases is essentially equitable in its nature. Under strict legal principles no recovery could be had upon the contract, but it would be manifestly unfair that one party should have the benefit of the labor and property of the other without recompense. Such a result is opposed to natural justice, and the courts will not allow it. Generally they will not alloAV profits which might have been obtained if the contract had been legal and valid, and if recovery Avere had according to its terms, but will confine the recovery to such sum as will reasonably compensate the party whose services or property have been devoted to the advantage of the other. If recovery could be had to the same extent under an illegal as under a legal contract, the temptation to public officers to pay no regard to statutes might often prove too strong for them to overcome in order to benefit their friends. The principle which applies is that of reimbursement. Where a county or municipal corporation has received money in payment for an invalid issue of bonds, they have usually been compelled to refund the money paid them, with interest, regardless of whether the bonds were sold at a premium or discount. The reasonable value which the plaintiff is entitled to recover in this case would seem to' be the actual cost of rendering the services and furnishing the material necessary, including all expenses incurred, but excluding profits.

The plaintiff contends that, the county having received a docket fee of $1 in each case from the taxpayer, this money in equity belongs to him to the extent of the statutory fee for printing legal notices. But this cannot be so, because the dollar fee is paid into the general fund of the county, and no specific part of it is appropriated by the statute to any specific purpose. In the scavenger act no sum is fixed as compensation for printing the notices. In Bee Publishing Co. v. Douglas County, supra, it was held that, no fee being fixed, the statutory fee for ordinary legal notices was the proper fee to be paid the printer when the publication was legally authorized. We are of opinion that, where there is no contract, the statutory fees cannot ipso facto be taken as the measure of damages. In Clark v. Lancaster County, 69 Neb. 717, which was an action by a taxpayer to prevent one Sheeley from building certain bridges and to prevent the collection of payment for the same, it appeared that the contract was invalid and the action of the county board under it was unlawful. The district court allowed Sheeley a decree for the amount of his labor and material furnished. It was complained in this court that the amount so found was not large enough. This court found it sufficient, and declined to allow more than Mr. Sheeley’s outlay in money and property, refusing to allow profits. We are satisfied to follow this precedent. This being so, the judgment of the district court must be reversed and the cause remanded for further proceedings.

Reversed.

Barnes, J., took no part in the consideration or decision in this case.