A formal contract exceeding $200 in value which a county enters into with a private contractor for the production of gravel from rock pits furnished by the county is a contract for construction, alteration or repair of public work or quasi public work, for which contract the contractor is required to execute, and the county commissioners must require the execution of, a penal bond in the full amount of the contract, and if there is a failure to obtain such bond, the county and county commissioners personally responsible for the failure to require such bond are liable to laborers and materialmen who furnish labor and material for such public contract. Sections 45-502 and 45-503, Idaho Code; Senate Bill 68, 1909, Idaho Session Laws, 1909, page 165; Section 31-855, Idaho Code; Chapter 19, Title 54, Idaho Code; Sections 54-1901, 54-1902, Idaho Code; Rounds v. Whatcom County, 22 Wn. 106, 60 P. 139; Boise-Payette Co. v. Challis Independent School Dist. No. 1, 46 Idaho 403, 268 P. 26.
Motions to dismiss for failure to state a claim upon which relief can be granted and motions for summary judgment should not be granted where there are contested issues of fact. Griffeth v. Utah Power Light Company, (9th Cir.), 226 F.2d 661; G. Ricordi Co. v. Slomanson, D.C., 19 F.R.D. 196; Cox v. American Fidelity Casualty Co., (9th Cir.) 249 F.2d 616; Booth v. Barber Transportation Co., (8th Cir.), 256 F.2d 927.
County commissioners are not required, under the provisions of Section 45-502, Idaho Code, to secure a bond from a contractor, upon a contract for the manufacture and stockpiling of gravel, such contract not being a contract for the "construction, alteration or repair of any public building, public work, or quasi public work". Sec. 45-502, Idaho Code; 43 Am.Jur., Public Works Contracts, Sec. 139, p. 831; United States for Use of Mengel Body Co. v. Metropolitan Body Co., 2 Cir., 79 F.2d 177, 101 A.L.R. 562; United States to Use of Bell v. Empire State Surety Co., 114 App. Div. 755, 100 N.Y.S. 247, 101 A.L.R. 562-567.
In the absence of a statute expressly declaring such liability, failure to exact a statutory bond does not render the public body nor the individual members thereof liable to laborers or materialmen for work done or materials furnished to a contractor. 43 Am.Jur., Public Works Contracts, Sec. 140, p. 882; 64 A.L.R. 687; McQuillan on Municipal Corporations, 3rd Ed., Sec. 12.208, p. 141 et seq.
A motion to dismiss is addressed to the sound judicial discretion of the court, which has a wide range of discretion in passing upon the motion. 35B C.J.S. Federal Civil Procedure § 792, p. 65.
McQUADE, Justice.
Plaintiff brought this action as a creditor, and as assignee of certain other creditors, of Mannon and Faraca, Inc., a construction contractor performing certain work for Nez Perce County. The individual defendants herein are members of the Board of County Commissioners.
Plaintiff alleged in his complaint the county contracted with Mannon and Faraca, Inc., to crush and deliver gravel to be stockpiled for repair and construction of public roads; that the firm delivered 40,280.47 tons, for which it was paid $1 per ton.
He further alleged the commissioners failed and neglected to secure a bond from the contracting firm. Plaintiff asserts he furnished Mannon and Faraca, Inc., goods and materials of the value of $1,091.61, which sum the corporation failed to pay; he then filed a claim against the county, and the commissioners took no action thereon.
In separate causes of action, plaintiff alleged he was assignee of five other creditors furnishing goods and materials to Mannon and Faraca, Inc., the respective claims of these creditors amounting to $267.77, $1,039, $329.50, $708.65, and $129.09. Plaintiff sought judgment for these sums.
Defendants moved to dismiss the action on the ground, inter alia, it stated no claim upon which relief could be granted. Other grounds for dismissal, not material here, were stated.
Defendants filed affidavits of defendant Schroeder and Wynne M. Blake, former prosecuting attorney of Nez Perce County, stating Blake advised the county commissioners Mannon and Faraca, Inc., were not required by statute to furnish bond.
The contract between the corporation and Nez Perce County was submitted to the trial court for hearing on the motion to dismiss. It indicates rock was to be taken from designated sites on private lands, provided by the county, and the contractor was to be permitted to make sales from these sources to private individuals as well as furnishing gravel to the county.
The trial judge held no bond was required, and plaintiff was not entitled to recover because he failed to state a claim against any of the defendants upon which relief could be granted. The judge ordered dismissal of the action with prejudice.
Plaintiff appeals, asserting the trial court erred in dismissing the action in that
"* * * the complaint does state a claim upon which relief could be granted, or could be amended to so state a claim upon which relief could be granted * * *"
and erred
"* * * in resolving contested issues of fact * * * without taking evidence, and in treating the motions in this case as motions to dismiss and not as motions for summary judgment."
This case turns upon construction of I.C. § 45-502, which in part provides:
"Hereafter any person or persons entering into a formal contract with * * * any county * * * for the construction, alteration or repair of any public building, public work, or quasi public work, the contract price of which exceeds the sum of $200.00, shall be required before commencing such work, to execute the usual penal bond, in a sum equaling the full amount of the contract price, to be approved by the officer, board or body authorized to make such contract, with the additional obligation that such contractor or contractors shall promptly make payments to all persons supplying him or them with labor or materials or supplies in the prosecution of the work provided for in such contract. * * *"
I.C. § 45-503 provides:
"Except when the contract price is $200.00 or less, it shall be unlawful for any officer of the * * * county * * * to allow any claim for money,
or to pay out and disburse any money to any person on account of any contract for the construction, alteration or repair of any public building, public work, or quasi public work, until a good and sufficient bond, as provided in the foregoing section is furnished and provided."
In People ex rel. White v. Storm, 49 Idaho 246, 287 P. 689, this Court treated a contract for crushing and delivering gravel for a specific highway project as being covered by the statute (then C.S. 7341.)
State ex rel. Modern Motor Company, Inc., v. H K Construction Company, 75 Idaho 492, 274 P.2d 1002, 1003, held the coverage of the bond
"* * * is to be liberally construed and not limited to labor and materials that are lienable under the mechanics' lien law in its relation to private structures, but all labor or materials that directly or indirectly contribute to the construction of the work, are covered * * *."
Neither of these cases rules squarely on the primary question here presented: i.e., whether crushing and stockpiling of gravel for some future use constitutes "construction, alteration or repair" of a public work, and the contract requires bond under I.C. § 45-502. State ex rel. Modern Motor Company, Inc., v. H K Construction Company is distinguishable in that the supplier there took part in the actual road construction.
This not being a contract for "construction, alteration or repair" within our statute, no bond was required. Therefore, it is unnecessary to determine the other questions raised by appellant.
The order of dismissal is affirmed.
Costs to respondents.
TAYLOR, C.J., and SMITH and McFADDEN, JJ., concur.