Hamar Construction Co. v. Union County

WUEST, Circuit Judge. During the spring floods of 1969, the Hawarden Bridge in Union County was [66] damaged. Many roads and bridges in the area were also damaged. According to Mr. Bak, who was a county commissioner at the time, the board immediately became aware of the difficulties which would be caused by the damage to the bridge and “approached the state highway department in order to get this classified as an emergency and emergency repair.” Mr. Bak testified that the state gave its approval of the project as an emergency project in the early part of September. Shortly thereafter, Mr. Street-er, county commissioner, determined that Hamar Construction Company was available to work on the bridge immediately. Mr. Hamar was contacted and on September 12, 1969, he was called to a meeting at the bridge site. According to Mr. Bak, the participants in the meeting were county commissioners, Mr. Bak, Mr. Streeter, Mr. Quam, and Mr. Gerard, the county highway superintendent. According to commissioner Streeter, “I was the one that hired” Hamar. Streeter testified that he told Hamar to “move in with what equipment he needed and keep track of the hours and we’d pay him on the hourly base.” Hamar was instructed to inform the county on a weekly basis of the cost of his services. All parties agree that no written agreement was ever made. Ha-mar testified: “There was no reason for to have a set deal because there was no contract. Didn’t have to bid on it. It was done by the hour so it’s immaterial what had to be done really.” “Q. Did you give the commissioners, the people that were present at this hearing, any indication of what you thought it might cost to do the work? “A. No I did not. “Q. Didn’t make any estimate? “A. No sir. “Q. And I believe you testified that the only figures that were kicked around as far as what the potential cost was going to be was between forty and one hundred thousand? “A. Yah. Yes.” Hamar began work immediately but did not submit his first bill until a full month had expired. That bill was for $18,572. A few days later, after Hamar had billed another $2,607, he was dismissed by the board. His total bill was $21,179. The county commissioners claim Hamar was entitled to $3,386.46 and tendered a check for that amount. Mr. Hamar refused it and returned the check. This lawsuit followed. The trial court found Hamar was entitled to the full $21,179. The county has appealed claiming a valid contract was never consummated. We agree. The power of the county boards must be exercised by them as boards and not by individuals, and the county is not bound by any action taken by members of the board individually. SDCL 7-8-16. Brown County v. Zerr, 1940, 67 S.D. 516, 295 N.W. 289. This court held in Boyd v. Lake County, 72 S.D. 431, 36 N.W.2d 384, as follows: “ ‘Whenever any board of county commissioners shall act upon any petition, adopt any resolution, make any appointment to fill any vacancy in a county office, or enter any final order in any proceedings pending before any such board, the members shall vote by yeas and nays and a record of such votes shall be kept by the county auditor who shall include the same in the published report of the minutes containing the record of any such action, resolution, appointment, or order.’ SDC 12.0614 [now SDCL 7-8-17], Under the foregoing ■ statute the board of county commissioners speaks through its record, and the members of the board cannot by unofficial utterances bind the county. Trippeer v. Couch, 110 Or. 446, 220 P. 1012. ‘The board of county commissioners can act authoritatively only by resolution properly spread upon the minutes and joined in by a majority of the board.’ Kelly v. Hamilton, 76 Wash. 576, 136 P. 1148, 1151. Members of the board acting individually act without authority. If they could do so ‘no record thereof would be made, and no order entered on the record from which an appeal could be [67] taken.’ Conger v. Board of Com’rs., 5 Idaho, 347, 48 P. 1064. The action of the board is not complete or effective to bind the county for any purpose until the record evidencing such action by the board has been made. ‘The records of the court [board] are held to be the sole witness of the proceedings * * Epps v. Washington County, 173 Tenn. 373, 117 S.W.2d 749, 750.” 72 S.D. at 436, 36 N.W.2d at 387. SDCL 31-14-24 provides for the repair of bridges and approaches in emergency situations and authorizes the county commissioners to enter into a contract for the building or rebuilding of bridges and approaches without advertising for bids. However, the department of transportation must approve the necessity for such emergency before the contract is let by the board of county commissioners. SDCL 31-14-25. These provisions have no application to this case because no contract was ever let. Other statutes permit repairs to bridges by counties by “day labor.” SDCL 31-14-20 and 31-14-21. These statutes contemplate construction by the county with “county labor and county-owned equipment.” We do not believe these latter statutes authorize the county board unrestrained power to hire contractors by the hour as was done in this case. See State v. Hughes County Commissioners, 81 S.D. 238, 133 N.W.2d 228. There is no authority or justification for such a casual and informal method of expending large sums of money to repair the bridge and its approaches. If there were an emergency, a contract could have been let without bids as provided by SDCL 31-14-24 and 31-14-25. Nor can the plaintiff recover under the theory of quantum meruit. Bak v. Jones County, 87 S.D. 468, 210 N.W.2d 65. Reversed. WINANS, J., concurs. WOLLMAN, J., concurs specially. DUNN, C. J., concurs in part and dissents in part. COLER, J., dissents. WUEST, Circuit Judge, sitting as a member of the court. ZASTROW, J., not having been a member of the court at the time this case was orally argued, did not participate.