Jenifer v. Commissioners of Hamilton County

Gholson, J., delivered the majority opinion of the court. It appears from the papers in this case, that the county commissioners made a contract with the plaintiff, to do certain work on a turnpike road, known as the extension of the Lower River road. The plaintiff was to be paid partly in cash, and partly in bonds. The work was done, and the payments, as agreed, were made. The amount of bonds delivered was $3,450, and the plaintiff claims that the com — 193 — missioners agreed, “ that the entire tolls and income of the said Lower River road should be appropriated to the payment and redemption of said bonds, so soon as the then-existing debt due for repairs of said road should be paid.” It is not stated or shown when, or how, by the terms of the bonds, they were to be paid or redeemed. The plaintiff claims that the debt referred to in the agreement, has been paid, and there is .a balance of tolls and income sufficient to redeem the bonds, and the commissioners having “ neglected and refused to appropriate the tolls of the Lower River road to the payment of said bonds and the redemption thereof, as by the said contract they were bound to do,” a judgment is claimed for $3,450, with interest. Upon looking at the acts of the general assembly, authorizing the construction of the Lower River road and the extension of the Lower River road, we think it clearly appears that those roads were intended to be distinct works, and that the tolls or income of one could not be legally appropriated to the repair or construction of the other. Above all, there is an express direction that the county of Hamilton was not to be made liable, in any form, for work done in the construction or repair of the extension of the Lower River road, on which road the work of the plaintiff' was done. The result is, that if the commissioners made the contract alleged in the petition of the plaintiff’, they did that for which they not only had no authority of law, but which appears to be prohibited. And if the breach of such a contract involves a charge on the county of Hamilton, it is indirectly accomplishing that which the clear and distinct enactment of the legislative authority says shall not be done. Had the court been asked, upon the statements of the petition, for a judgment in money against the commissioners of Hamilton county, the legal objections which have been suggested would, in our opinion, have been unanswerable. It happened, however, that the parties submitted their matters in difference in this suit to arbitration, with an — 194 — agreement that the award should be entered as the judgment of the court. The award was made in favor of the plaintiff, and the court is asked to enter the award as its judgment, and to enforce its performance, and the only mode suggested by which it is to be enforced, is by judgment and execution for the amount found to be due by the award. A preliminary question is presented, whether the award is to be considered as having been made under the code, or at common law ; by referees appointed by the court, or arbitrators chosen by the parties. Considered as a reference under the code, the case would present no difficulty. It appears that there was a petition and answer, and it must be considered that the issues arising on those pleadings were referred. A report of referees, upon a case in this position generally submitted, can have no greater effect than the verdict of a jury. The defendant would still have the right to insist, as an objection to a judgment, that the case made in the petition gave no right to recover. But, we think, from the terms of the agreement in this case it is rather to be regarded as a common law arbitration, and, therefore, the authority of the arbitrators and umpire depends upon the agreement of the parties, of which the entry made in the minutes of the court is the evidence. When there is a matter of difference between parties which they agree to refer, and thereupon an award is made, the award derives its force from, and really is to be considered, the agreement of the parties. A court called upon to enforce such an award, is enforcing and carrying into effect the agreement of the parties, and for the reason that it is their agreement.. If there be no agreement, there can be no award; and the same rule must apply, if what purports to be an agreement is illegal and void. Biddell v. Dowse, 6 B. & C. 255 ; 13 E. C. L. 168. The commissioners of Hamilton county constitute a quasi corporation for certain limited and defined purposes. They can only sue and be sued as to certain definite matters, and -their capacity in this respect is to be ascertained by refer — 195 — ence to the'matter involved, and not from any general corporate entity. If the matter be one as to which the commissioners, as a quasi corporation representing the county, can do no act or make no contract, then as to such a matter there is no capacity to sue or be sued. If as to such a matter a suit be in fact brought, the power of the county commissioners can extend no farther than to interpose the objection that it can not be maintained. And this objection they have no power to waive. The mere fact that the county commissioners have been sued in reference to such a matter can give no greater power to contract than they would otherwise possess. As a general proposition it may be true that a corporation being a party to an action in court, may take any step that an individual can, under like circumstances, to bring it to final judgment. 5 Howard, S. C. 89. But. these must be legal steps and such as the law recognizes and can control if they exceed the legal capacity of the party, independent of the existence of the suit. Eor there is another general proposition equally true and more important in its application, that you are not to do indirectly what you are prohibited from doing directly. Quando aliquid prohibetur fieri ex dilecto, prohibetur et per obliquum. "When the statute in express and direct terms forbids the county commissioners from making anything a charge on the county, they have no authority to make a contract which tends to that result. It is, therefore, of no moment to inquire whether the award in this case, is a report of referees made under the direction of the court, or is the agreement of the parties; if it be tainted with illegality, if it really accomplishes that which the law prohibits, it can not be sustained. A court of justice can not be made the handmaid of illegality, either directly by the aid of its own instrumentalities, or by sanctioning and giving effect to those agreed upon by the parties. When it is shown that the two roads are distinct, and that, for work done on the extension of the Lower River — 196 — road, the income of the Lower River road is not chargeable, and still more when it appears that any contract charging the county is prohibited, the case of the plaintiff fails. It does so appear from the provisions of the statute of which we are bound to take notice, and by the statements in the petition. A defective case can not be aided by the verdict of a jury or the report of referees. So long as the case remains under the control of the court, the verdict or the report may be set aside as contrary to law. There is power in the court to arrest. If parties make an illegal agreement, and in any stage the aid of the court is required, it will be withheld. In either way, therefore, from the continued power of the court to correct, or from the want of power in the parties to consummate, the effort to accomplish that which the law prohibits, must fail. There are minor objections to the award in this case, which we have not thought it necessary to notice particularly. One of these is that the award is not sufficiently certain and complete. In view of the facts stated in the petition, though such is not the prayer, the action is really one for specific relief. The plaintiff was paid in bonds. These he desires to have redeemed. lie can not expect to hold the bonds and receive the money. He is not directed to deliver the bonds. Indeed, they are not identified by any description, nor are they filed with the petition. If the action could be maintained, the proper relief would, be to require the payment of the bonds on delivery. The judgment should not be absolute but conditional. Yet the award is absolute for the amount claimed with interest, and the judgment ought properly to follow the award. Indeed, nothing is said in the award of the bonds, except so far as it is found that the material facts in the petition are true. It is found that $4,325, principal and interesáis due from the defendants to the plaintiff, and this in the conclusion is ordered to be paid. But whether the interest was on the bonds, or on the original demand is not stated, nor does it anywhere appear what interest the bonds bore. — 197 — When it is considered that from the facts stated in the petition and the denials in the answer the real issue between the parties was, whether a certain fund should be applied in payment and discharge of certain bonds, and not whether there was a general indebtedness, it may with some propriety be claimed that the award is not sufficiently specific. Has the plaintiff the bonds, and the same bonds, ready to deliver for cancellation, when paid? Should not this be required? There may be this ability, but it can only be made to appear elsewhere than in the award. But we do not think it necessary to remark farther upon any minor points. We are satisfied that what is sought to be attempted in this case, is an improper diversion of funds from one purpose to another. The mode in which it is proposed to be accomplished, is the rendition of a judgment against the county commissioners, representing the county, upon a consideration, for which the law says the county shall not be made liable. It is doubly illegal, and to' make it successful would require stronger and more conclusive steps than any which have been taken in this case. In our opinion, therefore, the motion of the plaintiff to enter judgment upon the award, should be overruled. Motion overruled : Spencer, J., concurring, and Storer, J., dissenting.