Salt Creek Township v. King Iron Bridge & Manufacturing Co.

51 Kan. 520

Opinion

The opinion of the court was delivered by

Horton, C. J.:

This action was brought by the King Iron Bridge & Manufacturing Company against Salt Creek township, in Lincoln county, to recover $1,103.03 upon a written contract, executed on the 2d of August, 1888, between the company and the township, for the construction and payment in township bonds of a bridge on the section line between sections 22 and 23, over Salt creek, in Salt Creek township. The bridge was constructed in accordance with the terms and conditions of the written contract, on or before January 5, 1889, and was accepted by the trustee aúd treasurer of the township. Upon the part of the township, it is contended that its officers were without power to make the contract for the construction of the bridge, or to create any liability upon the people of the township therefor. The answer of the company is, that the township officials supposed that they were proceeding according to law in making the contract; that they accepted the bridge and continued to use and retain the same. Therefore, if the officials of the township had no authority, or exceeded their authority, the township should be required to pay the reasonable value of the bridge. It appears that, prior to the execution of the written contract for the construction of the bridge, an election was held, on May 12, 1888, under the provisions of ¶¶ 416-422, Gen. Stat. of 1889. (Laws of 1872, ch. 68, '§§4-10; Laws of 1874, ch. 39, §§ 1-4.) At the election, 62 votes were cast for the bridge bonds, and 56 against the bonds. The statute prescribes that if three-fifths of the votes favor the building of a bridge and the issuance of bonds, the township officers may proceed, under the provisions of the statute, to construct the bridge and issue bonds in payment. There was not a three-fifths vote in favor of the proposition submitted; there were nine votes short. After the election, and on May 14, 1888, the township board met and proceeded to canvass the vote. The order of the board recited the votes cast, showing that less than three-fifths of the votes favored the proposition, and yet stated the proposition had carried. Subsequently, and on the 2d of August, 1888, the contract was signed by the bridge and manufacturing company and the township officials. It also appears that, at the time the contract was made for the construction of the bridge and the issuance of the bonds, there were outstanding and unpaid $18,000 of bonds of Salt Creek township. The taxable property, as shown by the last assessment, at the date of such contract was $149,169.25, making about 12 per cent, of bonded indebtedness. Paragraph 413, Gen. Stat. of 1889, reads:

“The board of county commissioners of any county, the mayor and common council of an incorporated city, and the trustee, clerk and treasurer of any municipal township in this state, are hereby empowered to issue the bonds of such county, city, or township, in any sum not greater than 5 per cent., inclusive of all other bonded indebtedness, of the taxable property of such county, city, or township, for the purpose of building or purchasing bridges, free or otherwise, and for the purpose of purchasing land and erecting buildings thereon for the poor: Provided, That the limit prescribed in this section shall not apply and be considered to restrict or prevent the issuing of any bonds heretofore voted, or vote now pending in any county, city or township in this state, and which bonds may not have yet been issued.” (Laws of 1872, ch. 68, § 1, as changed by Laws of 1874, ch. 39, §1.)

power tissue bridge bonds. 2'SSonfwhen0' Upon the facts disclosed in the record, and the provisions of the statute authorizing, under certain circumstances, township officers to build and pay for bridges, we think the bridge and manufacturing company & ° r , cannot recover. It seems to be conceded that the company cannot recover upon its contract. The only claim made is, that the township is estopped, and should be required to pay the reasonable value of the bridge. At the time of the execution of the contract, and also at the time the bridge was constructed, the public records of Salt Creek township showed that its officers had no power or authority to . make any contract for the bridge or to issue any bonds. The proposition submitted to the people for the building of a bridge did not receive three-fifths of their votes. It therefore was defeated. The statutory limitation of indebtedness in the township, as prescribed in ¶ 413, was also an inhibition against the making of the contract. The township board, and, possibly, the bridge and manufacturing company, mistook the law. In any event, the township officials acted in direct conflict with the provisions of the statute prescribing their duties and limiting their powers. The records of the township were public, open to all, and the bridge and manufacturing company was not and could not have been misled. The bridge was constructed upon a public highway within the township, but used by the people generally.

3. Void contract. It is a well-settled rule that township or other municipal officers cannot do by indirection that which they might not do directly. (The State, ex rel., v. Comm’rs of Marion Co., 21 Kas. 419.) If township officers may disregard all of the statutory provisions concerning the construction of and payment for bridges, and create a liability against the people of a township by accepting bridges or other work without any power so to do, and thereby make the township liable, then the provisions of the statute defining how bridges should be built and paid for have no force whatever. Under such a rule, the township officers may at any time build and accept bridges and create liabilities against the people of the township without a vote and without limit. As the contract between the township officers and the bridge and mauufac- . . , ¶ , , ( , taring company is void under the statute, we do not think the other facts disclosed show the township is estopped from asserting the want of power on the part of the township officers, or from defending against any liability for the bridge.

4' otSmSJ

There is no innocent holder of bonds in this case, and in fact no innocent parties. The township officers, as well as the bridge and manufacturing company, are presumed to know the law. The statute clearly declares the conditions upon which a municipal township may obtain bridges; but if the provisions of the statute are overlooked, or voluntarily cast aside by the parties, with full knowledge of all the facts, no estoppel of any kind can be created. There is a seeming hardship in refusing to pay for the bridge after the money of the company has completed it and it is in use upon a regular laid out public highway. But the want of legal authority to contract was known, or ought to have been known, by the company before it expended any of its money. Therefore it is at fault. Those dealiug with a township must see to it that its officers have power to act. In this case, nothing was concealed and all the facts appear upon the public records. A township or other municipality can only act by the mode prescribed by law. Any other rule leaves the taxpayers at the mercy of the officers of the township and contractor, and would render all statutory provisions of limitation of power nugatory. (Lewis v. Comm’rs of Bourbon Co., 12 Kas. 186; 15 Am. & Eng. Encyc. of Law, 1124; Daly v. City of San Francisco, 13 Pac. Rep. 321; Buchanan v. Litchfield, 102 U. S. 278; Newberry v. Fox, 33 N. W. Rep. [Minn. 1887] 333; Reichard v. Warren Co., 31 Iowa, 381; Brady v. Mayor of N. Y., 2 Bosw. 187; Law v. The People, 87 Ill. 385.) Of course, as the bridge was constructed upon the highway with the permission of the authorities, the company may remove the same. As the township refuses to pay for the bridge, it can have no interest or right to keep it. All the parties acted without any statutory authority.

In behalf of the bridge and manufacturing company, it is urged that the following authorities, among others, sustain the judgment of the trial court: Brown v. City of Atchison, 39 Kas. 37; Brown v. Milliken, 42 id. 769; Stewart v. Comm’rs of Wyandotte Co., 45 id. 708; School District v. Boyer, 46 id. 54; H. & S. Rld. Co. v. Comm’rs of Kingman Co., 48 id. 70.

In Brown v. City of Atchison, supra, Brown & Bier delivered over to Atchison city bonds amounting to $49,943.95, and received in funding bonds only $29,966.37. The court in that case held, that under the circumstances the city could not retain $19,977.58 of good bonds and then refuse to carry out its contract, which was a benefit to it.

In Brown v. Milliken, supra, it was assumed that the funding bonds were in the hands of innocent and bona fide holders.

In Stewart v. Comm’rs of Wyandotte Co., supra, Stewart acted for himself alone, not in an official capacity, and not for any township or other municipality. He was held to be estopped by his own acts.

In School District v. Boyer, supra, there was no want of power on the part of the officers of the school district. The schoolhouse was built and was defective in some particulars. The district accepted and used it, and therefore it was held liable for actual benefits.

In H. & S. Rld. Co. v. Comm’rs of Kingman Co., supra, the recitations in the journal of the. commissioners of Kingman county showed that the election was properly held, the votes properly canvassed, and the proposition submitted properly carried, in accordance with the statute. Every prerequisite of the law affirmatively appeared in that case, upon the records, to have been complied with by the county officials. In such cases, of course, an estoppel applies. None of these cases go, to the extent claimed, to support the judgment rendered in this case.

We are also cited to decisions from Illinois and other states upon the question of equitable estoppel. An examination of these cases shows, however, that in most of them the powers of private, not municipal, corporations are discussed and decided. The general rule is, that the doctrine of ultra vires is applied with greater strictness to municipal bodies than to private corporations. If the bridge and manufacturing company had actually paid money into the treasury of Salt Creek township, or if it had erected a bridge upon property belonging exclusively to the township, some of the authorities cited from this and other states might sustain the contention of the company; but the bridge was upon a regularly laid out public highway, and while it was within the limits of Salt Creek township, it was used by the public generally — those living outside of the township as well as those inside. The title to the highway is in the county for the public use, and the county has received the benefits of the bridge as well as the township.

The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views expressed herein.

All the Justices concurring.