Webster County v. Taylor

Dillon, J. i. pbacequitaúe ■ peaL This decree must be reversed for want of evidence to sustain it. It was tried by the first method. The clerk certifies that he has sent up all the evidence: and that evidence consists simply of certain entries made by the county judge, showing that the claim, for which the warrant in suit was issued, was filed in his office, and that the county had paid the defendant and two other persons $2,769.75 for selecting swamp lands. There is no proof in the record of the alleged fraud or the alleged want of consideration. But as the record entry recites, and the appellee claims that there was such evidence, which may have been lost, we remand the case for. a retrial instead of dismissing the petition. In doing so, as counsel differ radically in their arguments as to the powers and liabilities of the county, it is requisite that we state briefly the principles of law which we deem applicable to the controversy. ^extentof: liability. Counties are civil or political organizations, with a few defined and limited powers. They are simply menta^ auxiliaries or agencies; and their powers are much more limited than municipal corpora [120] tions strictly so called, and more restricted than trading or private corporations. The county is not bound by the unauthorized act of the county judge or other county officer with respect to a matter wholly beyond the corporate powers and duties. The written statute law is the source and charter of its power. Beyond this it cannot go. If it undertakes, through its officials, to do so, the county, the people of the county, are not bound. Hence the county is not estopped, although the warrant is issued, from making the defense of ultra vires. So it 3. — -vjús- defense, may also show that the warrant was procured fraudulently, or procured without consideration in whole or in part. (Clark v. Des Moines, post; Parsons v. Goshen, 11 Peck, 396: Hodges v. City of Buffalo, 2 Denio, 110; Halsted v. Mayor, &c., 3 N. Y. (3 Comst.), 430; 5 Barb., 218; Brown v. Utica, 2 Barb., 104; Anthony v. Inhabitants of Adams, 1 Metc., 286, per Shaw, Ch. J.; Vincent v. Inhabitants of Nantucket, 12 Cush., 103; Halliburton v. Inhabitants of Frankfort, 14 Mass., 214; Stetson v. Kempton, 13 Id., 272.) 4. SWAMP Íonfé: ■ ascnte' Applying these general principles to the case in hand,' we are, upon a critical and close examination of the course of legislation, both federal and State, in connec- . , , ! tl0n W1™ action, rules and requirements of the department of the interior, of the opinion that part of the services for which the claim is made, if rendered would be a legitimate county charge, and part not. ■ The grant in the act of congress of September 28th, 1850, of these lands, was to the State. The State, by the act of the legislature of January 13,1853, granted these lands to the several counties in which they lie, and provided for their selection by county agents. By subsequent act (acts 1853, p. 116,) the lands selected are to be reported to the. secretary of State, and by him forwarded [121] to the surveyor-general at Dubuque. But while the State thus granted these lands to the counties, the course of legislation shows, that the State always retained legislative control over them. The counties make the selections, and the practice has been to register these selections, in the State land office at Des Moines. (See on this subject the Report of 1863, of Hon. J. A. Harvey, register of State land office, p. 47, et seq.) By requirement of the department of the interior (see Lester’s Land Laws, p. 543, No. 574; p. 551, No. 579; p. 552, No. 580; p. 559, No. 590; p. 563, No. 594), recognized by the State law, these selections have to be sent to the surveyor-general of the State for revision and correction. He may receive evidence, to be furnished by the State authorities, as to the overflowed character of lands selected as swamp lands, and may reject the selections, or certify them to Washington as being correct. He may require-further evidence from the State authorities. (Lester, p. 559, No. 590.) The State has provided no officers or agents, whose duty it is to furnish such proof to the \ surveyor-general. Under the law by which county agents are to make the selections, and which grants these lands to the counties, we are of the opinion that they may legitimately incur expenses of this character. Instead of sending the abstracts or lists by mail or express, a county may employ an agent to bring them to the secretary of State or Staté land office. The duty of the register of the State land office is, however, purely ministerial, and consists simply in registering the selections made. The defendant would therefore be entitled to a fair compensation “ for carrying abstracts of swamp lands to the State land office and the surveyor-general’s office.” What the charge means, “ for attending to them there,” we do not know. So far as the State land office is concerned, he could do nothing but deliver the abstracts and see that they were registered. If [122] he rendered services in getting selections approved at the surveyor-general’s office, by furnishing further evidence and the like, we see no reason why the county, if it employed him, would not be liable therefor. s. — agents ington. But the authorities at Washington, with respect to these lands, deal only with the State authorities. They do not recognize counties or county agents. And this fact is recognized by acts of the legislature. The State appoints agents of its own (act January 27, 1858), to attend to and effect settlement of the swamp land business with the United States. And it was not until the act of April 8, 1862 (acts 1862, p. 186), which was after the services in controversy are claimed to have been rendered, that express authority was given to appoint special agents for counties deserving it, and this is to be done by the governor, but upon the recommendation or nomination of the board of supervisors. The sad experience of this State has shown the necessity of confining political and municipal corporations within their prescribed limits. The public safety is intimately bound up with a strict adherence to this rule. Without now going to the extent of finally deciding, that in no possible state of the case could an allowance be made for the services and expenses of a county agent to Washington prior to the act of April 8, 1862, we are agreed that if such an allowance can be made at all, which is doubtful, the good faith of the parties, in view of the temptation and danger of the abuse of the power, if it exists, should be placed beyond reasonable suspicion. The decree below, so far as it rendered a money judgment against the defendant, was not justified by the pleadings. Costs in this court to be paid by appellee and all other costs to abide event of suit. Reversed and remanded.