Wolcott v. Lawrence County

Richardson, Judge, delivered the opinion of the court. The county court is only the agent of the county, and, like any other agent, must pursue its authority and act within the scope of its power. In respect to many things that concern the county, it has a large discretion; but in reference to the erection of county buildings its authority is defined by a public law, and is special and limited. It can not act like general agents, whose acts may bind their principals if performed within the general scope of their agency, though in violation of private instructions unknown to those who deal with them,; for it has no power over the subject except such as is given by law; and every person who deals with the county court, acting in behalf of the county, is bound to know the law that confers the authority. There is no differ276 en.ce in this respect between public and private agents; and if the county court exceeds its special and limited authority, conferred by the .statute, in a material matter, the county will not be bound. The act concerning county buildings (R. C. 1845, p. 286) regulates the whole subject. The manifest policy of the act was to prevent the embarrassment of counties by the erection of buildings more costly than their necessities require, and the incurring of liabilities beyond their ability to pay. The first step to be taken by the county court, before proceeding to the erection of a county building, is to ascertain that sufficient funds are in the treasury unappropriated, or that the circumstances of the county otherwise permit; and then to make an order appropriating a certain sum for the purpose, which shall cover the maximum cost; and the contract price can not exceed the amount appropriated. This provision was evidently suggested by the universal experience that the cost of public works generally exceeds the estimate; and there would be no safeguards for the funds or credit of a county if the public buildings were let out to be built by contract and the price left to be determined according to the value of the work after its completion. When the county court is satisfied that “ sufficient funds are in the treasury or that the circumstances of the county will otherwise permit, it may .order the erection of a building, stating in the order the amount to be expended for that purpose, and shall appoint a suitable person to superintend the work, who shall take an oath faithfully to discharge his duties.” (Section 4.) It is made the duty of the superintendent to submit to the county court a plan of the building to be erected, the dimensions thereof, and the materials of which it is to be composed, with an estimate of the probable cost thereof. (Sec. 10.) When the plan is approved by the court the superintendent shall advertise for receiving proposals for erecting such building, “ and shall contract with the person who will agree to do the work on the lowest terms, not exceeding the amount appropriated.” (Sec. 11.) The [277] superintendent shall take from the undertaker a bond to the county with sufficient security for the performance of the work at such time and in such manner as shall be agreed upon according to the plan. (Sec. 12.) It is the duty of the superintendent to overlook and direct the execution of the work, to see that the materials are good and the work executed according to contract, and shall make report of the progress and condition thereof from time to time to the county court. (Sec. 13.) When any instalments shall become due to the contractor according to the contract, the county court shall make an order that the same be paid out of the county treasury. (Sec. 14.) But no such order shall be made unless the superintendent shall certify that a due proportion of the work has been completed according to contract. (Sec. 15.) This law is the warrant of attorney to the county court. All its provisions are plain, and the contractor, before he undertakes the work, as he deals with an agent whose powers and duties are prescribed, ought to see that the agent is pursuing its authority; for the agent can not bind the county except as it is commanded or permitted to do. If the agent of a private person produced to a builder a power of attorney authorizing him to contract for building a house of certain dimensions and the cost not to exceed a given sum, and in the face of his authority should contract for a house of a different kind and at a greater cost, no one would pretend that the contract would bind the principal unless he subsequently ratified it; and it is only the application of this familiar rule that we apply to this case. If any effect is to be given to the law at all, its plain directions must be followed, and to allow a manifest departure from them would not only be a violation of an established rule that governs the relation of principal and agent, but would remove all the restrictions which the law has imposed upon the county court in contracting debts to be paid by the county. The petition in this case docs not aver a contract of any kind with the county court, but the plaintiff seeks to recover [278] upon a quantum meruit. In our opinion tbe county is not liable upon an implied promise. The acceptance of the building by the county court did not help the plaintiff, for the ratification must come from the principal; (Delafield v. Illinois, 2 Hill, 175 ;) and if the county was not liable for the claim as stated in the petition it was not bound by the award. The demurrer was properly sustained, and the judgment will be affirmed; the other judges concurring.