Paxton v. Arthur

Cooper, J., delivered the opinion of the court. The demurrer of the defendants to the declaration should have been overruled, except as to so much of the declaration as assigns as breaches of the bond sued on the appropriations made for the purchase of lumber used in repairing bridges. There is no authority in the law for the appropriation of public money to the employment of surveyors engaged in locating, surveying, or grading public roads, and only under exceptional circumstances can appropriations be made for any character of work done on the roads themselves. The declaration avers that the allowances made by the board were not made under the circumstances named in the statute, which alone would justify such appropriations, and the demurrer admits this to be true. Ordinarily, the i-oads are to be kept in condition by the labor of the hands under the supervision of the overseers, and an appropriation for such work would be made to an object not authorized by law. It is only when the roads have become so damaged by high water or some other casualty as to be dangerous or unfit for travellers, and when the overseer after notice, has failed to repair them, that a member'of the board may employ labor at the expense of the county to put them in repair. It is the emergency only which makes work on the roads ‘ ‘ an object authorized by law ” for an appropriation of the public funds. If the board was advised and believed that the cii’cumstances did exist, which, existing, would have authorized the appropriations, and made the allowances under an honest, though mistaken, belief of facts, the members would not be personally liable under the statute for the sums so allowed ; but it devolved upon the defendants to plead and prove either the real or apparent existence of such facts. The appropriations for lumber to be used in repairing the bridges were to an object which, under some circumstances, [839] might lawfully be made, and for appropriations to such objects the members are not liable in a suit upon their bonds. The judgment is reversed and cause remanded.