
    Commissioners of Noble County v. Hunt & Co.
    1. In eases where a specific duty is enjoined by law upon the board of county commissioners to be performed in a specific manner not involving judicial discretion, and when performance by the board is due it refuses to act, it may be compelled to do so by mandamus.
    
    2. The county commissioners having accepted, as completed according to contract, a road improvement, ordered by them to be made in pursuance of statutes authorizing payment therefor to be made in bonds of the county to he issued to the contractor on completion of the improvement and acceptance thereof, and the commissioners refuse to deliver to the contractor the bonds to which he is entitled, mandamus, and not appeal, is the proper remedy for redress.
    3. The board of county commissioners, in the due course of business, at a regular session, caused an entry, as follows, be made on their journal: " September 7, 1872. The macadamized road petitioned for by Hiram Haistings and others, under the law of April 30,1869, and the act amendatory and supplementary thereto, having been completed according to contract, the same is hereby accepted as such. James Ealrin, William Long, Robert Calland, Commissioners.” Held, Parol evidence was inadmissible to explain, modify, or change this record.
    Error to the District Court of Noble county.
    This was a proceeding in the district court for a peremptory mandamus to compel the county commissioners ot Noble county to issue, in favor of relators, county bonds claimed to be due them for labor performed and material furnished by them, under a contract to improve a portion of a county road in Noble county, under the statutes then in force ill relation to two-mile road improvements. In response to an alternative writ of mandamus, respondents answered, denying the liability of the county under the contract, claiming-that the relators had not performed their part of the contract, and that the road had not been accepted either by the engineer or the respondents. The issues of fact were submitted to a jury, and a verdict was given for relators for $840.35, the full amount of their claim.
    The facts necessary to an understanding of the case, other than what will appear in the opinion, are substantially these, Hiram Ilaistings, and the requisite number of other qualified land-owners, filed with the commissioners a petition praying for the improvement of a public road, under the provisions of the act of April 23, 1869, and acts in force in relation to the same subject. Such proceedings were afterward had upon the petition that the improvements were ordered, and one Henry Miller was appointed as the engineer of the improvement, with authority to enter into contracts for the performance of the same. Thereupon, with the approval of the commissioners, a contract was entered into by the relators, to improve sections 9,10, and 11, in accordance with the specifications. The specifications formed part of the contract, and provided that “ The macadamizing must be done with good limestone, free from any substance that will cause it to molder by the action of the weather, and must be delivered upon the roadbed as directed by the engineer, and broken to a size not exceeding four ounces in weight. The spreading must be done as directed by the engineer, and may be in one, two, or three layers; the stones must be free and clear from all earthy mixture.”
    In the contract, the relators agreed that the party of the first part do and perform, for and in consideration of the covenants of the party of the second part, hereinafter mentioned, the work on sections number 9, 10, and 11, of the above road, at the prices in the above proposal, and according to the above specifications, which are made a part of the above contract.
    
      The respondents, as county commissioners, on their part agreed to pay said party of the first part, for said improvements, at the rate stated in said proposal in the bonds of said county of Noble, issued for the .improvement of said road, bearing interest at seven per cent, per annum, on or before the 15th day of each month, after the work is commenced on said section, for the pro raía portiop pérformed prior to the 1st day of said month, to be determined by the estimate of the engineer in charge of said improvement, reserving ten per cent, of said estimate until the work is completed.
    In pursuance of the contract as the work progressed, the engineer, from month to month, examined the improvement, making estimates in favor of relators. -The engineer complained to the relators, during the progress of the work, that some of the limestone used in macadamizing was not of a quality according to contract. The commissioners also went over the road for examination, and were advised of the character of the work done and material used by the relators on the job.
    Eull estimates, twenty-thi’ee in number, were made and delivered by the engineer to the relators, approved by the commissioners, and also county bonds, less ten per cent, on each estimate. At the June session of the commission for 1872, the parties undertook to settle and adjust the claims of the relators, but failed to do so, the commissioners claiming that relators had not performed the work according to contract. No record was made of any action in reference to the claim of the relators, if any was had, at this June session. At their September session for 1872, the respondents on their own motion and in the absence of relators, made an entry on their journal, as follows:
    “ September 7, 1872.
    The macadamized road petitioned for by Hiram Haistings and others, under the law of April 30, 1869, and the acts amendatory and supplementary thereto, having been completed according to contract, the same is hereby accepted as such.
    (Signed,) . Jambs Eakin,
    William Lons, Robert Calland, Commissioners”
    
    On the trial, the relators to maintain the issue on their part, offered in evidence the foregoing record, and the several estimates of the engineer, in their favor, and rested their case. The estimates were substantially as follows, in form and substance:
    No. 80. It is hereby certified, that there is due J. R. Hunt & Co., for work done on section nine of the Williamsburg aud Summerfield Road, during the month-of June, us follows:
    Grading 491 yards of earth, at 23c..........$216 43
    Building 12 perches culvert, ae $4.25...... 51 00
    Building 19.2 perches culvert heading at
    $4.00................................................ 76 80
    Excavating 41 yards earth, at 23c........... 9 43
    Excavating 6 yards shell rock at 45c........ 2 70
    Delivering 50 rods limestone, at $3.50...... 175 00
    Breaking 37.58 rods limestone, at $1.50.... 56 37
    Spreading 58.52 rods limestone, at 40c...... 23 40
    611 13
    Deduct 10 per cent......................... 61 11
    $550 02
    Henry Miller, Engineer.
    
    The respondents to maintain the issue, on their part, called as a witness, William Long, one of the respondents, and offered to prove by him, among other things, “ that, at the time of said journal entry of the date of September 7, 1872, the claim of said relators was not before said commissioners, and was notin any way considered by them,but that said entry was made by said commissioners for the purpose of accepting the road, and establishing it as a public highway, and to authorize the trustees of the townships through which it passed, to expend the labor and road tax upon the same for the purpose of keeping it in repair, and that said entry was made for no other purpose, and with no other intention. To the introduction of said testimony the relatora by their council objected, and the court sustained the objection, and refused to allow said testimony to go to the jury and be considered by them, to which ruling of the court, in sustaining said objection, and refusing to allow said testimony to be given, the defendants then and there excepted.”
    Respondents offered to prove some other matters by the witness, Long, explanatory of the conduct and motives of the commissioners, which, on objection, were excluded. In the further progress of the case the facts excluded were proven by the testimony of Long and other witnesses called on behalf of respondents.
    The jury having returned a verdict for relators, respondents made a motion for a new trial. This was overruled, and a bill of exceptions embodying all the evidence was taken and made of record. Judgment was entered upon the verdict, and a peremptory mandamus awarded. This judgment was excepted to. Now the respondents aver that there is error in the record and proceedings in this, to wit:
    1. The court erred in ruling out the evidence of William Long, as offered by the said commissioners. ■
    2. The court erred in overruling the motion of the said commissioners for a new trial.
    
      Evans $ Chambers and Belford OJcey, for plaintiffs in error:
    The remedy of relators was not by mandamus but by appeal. Gerke v. Comm’rs, 26 Ohio St. 364.
    Parol evidence was admissible to explain or modify the record of the commissioners. Robinson v. Jones, 8 Mass. 536; Maley v. Shattuck, 3 Cranch, 458; Gelston v. Hoyt, 3 Wheat. 246; 1 Greenleaf on Evidence, § 527 a; 1 Phillips Ev. 453; 2 Phillips Ev. 21, etc. (note 262); 2 Parsons on Contracts (6th edition), 789, and note h; Anderson and Wife v. Comm’rs of Hamilton County, 12 Ohio St. 635; 2 Dillon on Municipal Corporations, 746, § 648.
    
      J. H. Collins, for defendant in error;
    
      Mandamus is the proper remedy, and the case of Gerke v. Comm’rs of Hamilton County, 26 Ohio St. 364, supports, and is not against, this proposition.
    That was a claim against Hamilton county for expenses incurred in legal proceedings do collect taxes, instituted by the county treasurer, and the commissioners having refused its allowance, the treasurer resorted to the writ of mandamus to compel such allowance ; and it was held that appeal and not mandamus was the proper remedy. Here, under a special statute, the commissioners contracted to issue and deliver bonds of the county, in pursuance of the statute, to the relators, monthly, as the work progressed, reserving ten per cent, to be issued at the conclusion of the work. The work was finished, the amount due relators was ascertained and liquidated by the certificates of the engineer, and the commissioners adjudicated the matter finally by entering upon their journal an order finding that the road had been completed according to contract, and ordering its acceptance as such.
    There was no other adequate remedy.
    A judgment at law for the 'amount due could not be had, because, under the contract, relators were entitled to bonds, not money, and a bill in equity to compel the specific performance of the contract would not be an adequate remedy, and, if it were, it is not a good reason for refusing this writ. The People v. The Mayor, etc., 10 Wend. 395 ; C. W. & Z. R. R. Co. v. The Comm’rs of Clinton County, 1 Ohio St. 78.
    The ease of Omaha v. Hammond, 4 Otto, 98, is directly in point, and is conclusive of this ease on its merits.
   Ashburn, J.

This proceeding in mandamus was instituted to compel the board of county commissioners of No. ble county to issue and deliver to relators a certain amount of county bonds, claimed by them to be due them from the county, for labor performed and materials furnished in constructing a road improvement ordered by the county commissioners of that county, under the statutes authorizing such improvements. The relators claimed to have performed their part under the contract, and that the improvement had been accepted by the commissioners as a completed work.

It is claimed by respondents that the work was not done and materials furnished according to contract; that the improvement was not received by them; that no bonds of the county are due relators, aud that, if relators have any claim against the county under the contract, their remedy is by appeal from the action of the board of county commissioners, and not by mandamus.

If the improvement was, in fact, accepted by the county commissioners, their duty, under the statute in relation to the issuing of bonds of the county to the contractors, was a ministerial duty.

The statute authorizing such improvements, provides, “ that for the purpose of raising the money necessary to meet the expense of said improvement, the commissioners of the county are hereby authorized to issue the bonds of the county, . . . provided that no bonds shall be delivered, or any money paid, to any contractor, except upon estimates of work done as the same progresses or is completed,” etc. (64 Ohio L. 83, § 7.) In this case, the board of commissioners contracted to deliver to relators bonds of the county, in amounts “ to be detei’mined by the estimates of the engineer ixi chax’ge of said improvement.”

The writ of mandamus may be issued to any inferior tribunal or officer, to compel the performance of any act or duty which the law specially imposes upon the office or official station. But though it may require such tribunal or officer to exercise its, or his, judgment, or to proceed to the disehax’ge of any of its, or his, functions, it can not be used to control judicial discretion. Code, § 569.

"Where, as in this case, the contract specifies that the improvement is to be paid for in bonds of the county, upon estimates rendered or the completion of the work, and it is accepted by the board of county commissioners, it is the duty of the commissioners to deliver them. This duty is ministerial, and in no way involves' judicial discretion. Plence mandamus, upon refusal, is the appropriate means to enforce the performance of the duty.

It is claimed, by respondents, that appeal to the court of common pleas would afford relators an adequate remedy. We think not.- The claim of relators was not one calling for liquidation by judicial action in the sense of finding what was due the claimant in money for which a judgment might be rendered. Their claim was to be satisfied in a specific way, by a specific thing. The court of common pleas has no jurisdiction on appeal in such a ease. If it should assume jurisdiction, it could not render a judgment for money, and if it should order the county commissioners to issue county bonds, that court has no power to enforce such an order. The claim of relators does not come within the character of claims, where one aggrieved by the action of the county commissioners, may appeal, as provided in section 18 of the commissioners’ act, S. & C. 247. Nor do these special road improvement laws provide for an appeal. Hence none exists.

It is claimed the court erred in rejecting the parol evidence offered by respondents to explain -and apply to a specific purpose, other than the acceptance of the road, the entry made by the commissioners on their journal, dated September 7, 1872.

We think there was no error in this. . The journal entry was something more than an admission, the effect of which might be explained away by parol testimony. Its creation was a judicial act — a judgment upon a question over which the commissioners had complete jurisdiction. Having a* legal right to make such an entry upon the subject-matter to which it relates, it must be treated as a record importing verity. Parol testimony was not necessary to apply the record to the appropriate subject-matter, for the bill of exceptions shows that, on the trial, “it was conceded that the road named in the foregoing entry embraced the sections contracted for in this case.” The entry was. unambiguous. It called for no construction, and the subject-matter to which it applied was unmistakable. It was not a case in which parol testimony was admissible to apply the record to its appropriate subject.

It is claimed the verdict is not supported by the proofs.

No question arises out of a conflict of testimony, but upon a preponderance of the evidence used on the trial. Relators do not, by testimony, deny that some inferior stone was used in the macadamizing, but claim the road is. none the worse for its use, and that, by accepting the work,, the commissioners waived any supposed defect arising' therefrom. Miller, the engineer, testifies : “ The road with good mateiial is no better, at present, than that with bad, as I can observe, for the reason that the bad stone is on the-ridge, and on better and more solid soil, it (the bad stone) being handier to work on the ridge.” Other witnesses testify that the inferior stone makes an inferior road. The proofs show that the engineer, when he made the estimates,, and the commissioners when they approved them, knew,, from actual observation,' that a portion of the road was being constructed with inferior stone; and yet, with this-knowledge, allowed each estimate made by their inspecting agent, in full, and, upon each estimate, delivered to the contractors bonds to the full amount, less ten per cent., as per contract. They were fully advised, in June, 1872, when trying to effect a settlement with relators, that inferior material had been used; and yet, with full knowledge of this fact, on the 7th day of September, 1872, closed the controversy, by declaring, on their records, that the road, “ having been completed according to contract, the same is hereby accepted as such.” This record, we think, was a potent fact in the case ; and from the effect, as a fact in the case, which we are inclined to give it, the verdict is not-against the weight of the evidence.

It is not at all clear but that, from the authority the law and the commissioners reposed in the engineer, the estimates made by him and approved by the commissioners, and paid in full, less the contract deduction, unaided by this recorded admission, was conclusive as to the relator’s right to .demand the bonds, when the last estimate was made and approved by the commissioners. See Omaha v. Hammond, 4 Otto, 98. In this case, we do not hold the acts of the engineer, under the contract, are conclusive upon the board of county commissioners. But, giving to the conduct and official acts of the engineer and county commissioners their natural and ordinary significance as evidence, the proofs sustain the verdict. Indeed, it is difficult to conceive how an intelligent jury, giving to the proofs their proper effect, could have arrived at a different conclusion.

The judgment of the district court is affirmed, and cause remanded to that court for execution.  