Reichard v. Warren County

Ray, Ch. J. l. county: board of supervisors :erection of public buildings. — I. Prior to the adoption of the Revision, the county judge was the financial agent of the county, and his authority to contract for the erection . , ° . . • . „ oí a court-house was without limit. State ex rel. Brooks v. Napier, 7 Iowa, 425. The act of March 22,1860, which changed the system of county government, provides : “ That it shall not be competent for said board of supervisors to order the erection of a court-house, jail, poor-house or other building or bridge* nor. the purchase of real estate for county purposes when the probable cost will exceed (five) $5,000, until a proposition therefor shall have been first submitted to the [388] legal voters of the county, and voted for by a majority of all voting for and against such proposition, at a general election; notice of the same being given for thirty days previously,” etc. Rev., § 312, subd. 23. The Code of 1851, sections 111 and 115, Revision, sections 250 and 251, provided for the submission by the county judge of certain questions to a vote of the people, and the manner of submission. In the case of Starr & Rand v. Board of Supervisors of Des Moines County, 22 Iowa, 192, it was held that the provisions of the Code of 1851, directing the manner of the submission of a question to the vote of the people by the county judge, are applicable to and govern such submission by the board of supervisors under section 312 of the Revision. Section 115 of the Code, 251 of the Revision, is as .follows : “ The mode of submitting such question to the people shall be the following: the whole question, including the sum, desired to be raised, or the amount of tax desired to be levied, or the vote per annum, and the whole regulation, including the time of its taking effect or having operation, if it be of a nature to be set forth, and the penalty for its violation if there be one, is to be published at least four weeks in some newspaper published in the county,” etc. In pursuance of these provisions the board of supervisors of "Warren county “submitted to the voters of said county, at the October election, 1865, the question of building a court-house, at the county seat of said county, and also the question of a tax of $40,000 with which to build said courthouse.” The board of supervisors are agents of the county, whose powers are defined and limited by the act creating them. Reyond the powers conferred upon them by statute their acts do no more bind the county than do those of a special agent, when he transcends the purposes of his agency, bind [389] his principal. Before the adóption of this resolution the board of supervisors could contract only for a building the cost of which would not exceed $5,000. Whatever powers they acquired beyond this were derived from the vote of the county. This vote conferred upon them authority to contract to the extent of $40,000. It. circumscribed their authority within that limit, just as much as the law before had done within the limit of $5,000. It said to them, “thus far, but no farther.” Any attempt upon their part to bind the county beyond the limit defined by this vote was simply a void act. It created no legal liability on the part of the county. And if the board of supervisors could not themselves bind the county beyond the special authority delegated to them, it is too obvious for discussion, that they could not confer upoji the building committee and the architect authority to do so. The plaintiff was bound at his peril to take cognizance of the extent of the authority of those with whom he dealt, and he ought not to have consented to changes increasing the cost of the building beyond that which the board of supervisors had the power to expend. And, while we may deprecate the circumstances which place him in a condition to suffer loss, we cannot for his protection place upon the statute a construction which would deprive the counties of all practical benefits therefrom. Appellant insists that, when the voters of a county authorize the expenditure of over $5,000 in the erection of a court-house, all restraints are removed, and the board of supervisors may contract to any extent, notwithstanding the limitation in the vote. Such a construction would work a practical nullification of the statute and defeat the evident purposes of its enactment. It cannot be doubted that the object of the legislature was to protect the counties from the unlimited power of expenditure for public buildings, which, prior to the adoption of the Revision, was vested in the county judge. [390] If the law is now such that under the vote of a county-authorizing the appropriation of $6,000 to the erection of a court-house, the board of supervisors may build one costing a million, and bind the county to pay therefor, it must be admitted that the legislature upon the subject has fallen far short of accomplishing the purpose designed. The statement of such a proposition, it seems to us, is its refutation. 2. contract. implied II. The same course of reasoning which establishes that the board of supervisors cannot bind a county for the erection of a public building beyond the amount authorized by vote, also proves that beyond that amount the county cannot be made liable upon an imjpUed agreement to pay what the structure is reasonably worth. To admit such liability would simply enable the board of supervisors to accomplish indirectly what they could not do directly. More than this, it would place it in the power of the contractor to render the county liable without the concurrence or assent of the board of supervisors, and would nullify the provisions of section 313 of the Revision, which declares that no contract for the erection of any public building shall be entered into without a majority of the whole board of supervisors voting therefor, and consenting thereto. No argument can be advanced in support of the view that a- county may be made liable upon an implied agreement beyond the limit of the vote, which would not more strongly support the authority of the board to contract to the same extent. No such implied obligation exists. As was forcibly said in the case of Brady v. The Mayor of New York, 2 Bosw. 187, “ the law never implies an obligation to do that which it forbids the party to agree to do.” [391] 3<_qUantum Acceptance* of building. [390] III. It is claimed, however, that as the county has accepted and is occupying the building, it is under obligation to pay the contractor therefor what it has reasonably [391] cosC This position is not tenable. Tbe erection of tbe building was undertaken under a speeontract, and the county bas already paid thereon the sum of $50,000. Can it be that tbe county cannot use what bas cost it so much, without thereby making itself liable for $39,000 more % What is said in tbe case of Zottman v. San Francisco, 20 Cal. 106, is so applicable to tbe present question that we quote therefrom. Tbe court said: “ To tbe application of tbe doctrine of liability upon an implied contract where work is performed by one, tbe benefit of which is received by another, there must not only be no restrictions imposed by tbe law upon tbe party sought to be charged against making in direct terms a similar contract to that which is implied, but tbe party must also be in a situation where be is entirely free to elect whether be will or will not accept of tbe work, and when such election will or may influence tbe conduct of tbe other party with reference to the work itself. Tbe mere retention and use of tbe benefit resulting from tbe work where no such power or freedom of election exists, or where tbe election cannot influence tbe conduct of tbe other party with reference to tbe work performed, does not constitute such evidence of acceptance, that tbe law will imply therefrom a promise of payment.” Now, it is apparent that neither of tbe conditions above spoken of, under which tbe retention and use of the benefit arising from a work creates an obligation to pay for it, exists in the present case. Tbe law does impose restrictions upon tbe board of supervisors against making a contract similar to that which is sought to be implied; and, second: The acceptance of tbe building can, in no way, have influenced tbe conduct of tbe plaintiff in respect thereto. If tbe building bad not been accepted he could not have removed tbe seventeen feet additional length, nor tbe Mansard roof, nor tbe stone quoins, nor tbe additional lumber, plastering, painting and glazing; and if be could [392] have done so his condition would not thereby have been improved. The plaintiff is not injured by the occupancy of the building. The county cannot derive the benefits of its contract without the occupancy of the building, and it cannot occupy the building without using that portion of it for which the plaintiff claims extra compensation. Such use constitutes no such evidence of acceptance as to create a liability against the county. We have no hesitancy in coming to the conclusion that the plaintiff cannot recover. It not unfrequently happens that contractors, by dint of importunity, effect changes in the orginal plan of buildings, for the express purpose of avoiding the contract, and recovering a much larger sum than the contract price, upon a qucmtum meruit. If one erecting public buildings for a county should be circumvented in such an effort, the hardship to which he is subjected is much more apparent than real. As was well said in Brady v. Mayor of New York, before alluded to : “ It may sometimes seem a hardship upon a contractor that all compensation for work done, etc., should, be denied him; but it should be remembered that he, no less than the officers of the corporation, when he deals in a matter expressly provided for in the charter, is bound to see to it that the charter is complied with. If he neglect this, or chooses to take the hazard, he is a mere volunteer and suffers only what he ought to have anticipated. If the statute forbids the contract which he has made, he knows it, or ought to know it, before he places his money or services at hazard. In support of the views herein expressed see Zottman v. San Francisco, 20 Cal. 96; Murphy v. Napa county, id. 502; Butler v. City of Charlestown, 7 Gray (Mass.) 13 ; McSpeon et al. v. Mayor of New York, 7 Bosw. 601; Brady v. Same, 2 id. 173; Farmer's Loan, and Trust Co. v. Same, & id. 80; Johnson v. Common Council, 16 Ind. 227; Jamison v. St. Louis Co., 33 Mo. [393] 169; Hull and Argalls v. County of Marshall, 12 Iowa, 142; Clark v. City of Des Moines, 19 id. 209; Manning v. District Township of Van Buren, 28 id. 332; Walcott v. Lawrence County, 26 Mo. 273; Taylor v. The District Township of Wayne, 25 Iowa, 447; Taylor v. The District Township of Otter Creek, 26 id. 281. The authorities cited by appellant do not sustain a view adverse to that here announced. The judgment of the district court, sustaining the demurrer, is Affirmed.