
    Burkholder v. Lauber et al.
    [Cite as Burkholder v. Lauber, 6 Ohio Misc. 152.]
    (No. 15046
    Decided Nov. 2, 1965)
    Common Pleas Court of Fulton County.
    
      Messrs. Fuhrman, Gertner & Britz and Mr. Charles N. Hunt, for plaintiff.
    
      Mr. James L. Frey, prosecuting attorney, for defendants.
   Ham, J.

Plaintiff, in his first cause of action against the defendants as the Board of County Commissioners of Fulton County, Ohio, alleges that he is lessee of certain described premises ; that the Fulton County Engineer commenced an improvement of a county road adjacent to said premises, “as authorized and directed by said defendants”; that in connection with said improvement it was necessary for the engineer to remove the stone and subsurface materials of the old roadway; “that during said work in connection with said highway improvement, a duly authorized member of the County Engineer’s office contracted and agreed that if the plaintiff would allow the County Engineer to store a substantial quantity of said stone mix on his property without charge and thereby save the County the time and expense of hauling away said stone mix, plaintiff would be entitled to have as much of said stored materials as he might want for his personal use and without charge therefor ; that plaintiff agreed thereto and that thereafter a substantial portion of stone mix, to wit, approximately 1000 cubic yards, were stored on plaintiff’s premises; that plaintiff had need for approximately 800 cubic yards of said materials and by using the stored materials rather than having to purchase stone mix, could save $4,000 in the construction of a private road; that thereafter in breach of said agreement, the County Commissioners directed and permitted substantial quantities of said materials to be removed from plaintiff’s property and there remains approximtely 150 cubic yards of said materials; and that as a result thereof Plaintiff will be required to purchase 650 cubic yards of said materials at a cost of $3,250 and to transport the same to the place of its use.”

In his second cause of action plaintiff alleges that the defendants “have breached and repudiated their agreement for the storage and possession of said materials, and plaintiff is entitled to a fair and reasonable charge for the use of his land for the storage of said materials . . . .”

To both causes of action the defendants demur on the ground that it appears on the face of the petition that the facts therein contained do not constitute a cause of action.

The crux of the first cause of action is that part of paragraph 5 which reads: “That during said work, in connection with said highway improvement, a duly authorized member of the County Engineer’s offiee contracted and agreed . . . .”

Chapter 315., Revised Code, creates the office of county engineer. The statutes are silent as to the status of a “member” of said office. For the purpose of this decision, therefore, it will be assumed that the plaintiff, in referring to “member,” actually meant “employee.”

The question, then, resolves itself into this: May an employee of the county engineer’s office be authorized to enter into a contract with a private citizen which will be binding upon the county? The answer is not a simple one.

"The board of county commissioners is the body — the quasi corporation — in whom is vested by law the title to all the property of the county. In one sense they are the agents of the county, and in another sense they are the county itself.” Carder v. Commissioners, 16 Ohio St., 353, 369. It has been said that the commissioners are trustees of county property and may perform such acts as trustees may legally perform in regard to such property. Nearing v. Ry. Co., 9 O. C. C. 596, 6 O. C. D. 664.

The authority of the board of county commissioners is limited to the exercise of such powers only as are conferred upon it by law. Peter v. Parkinson, Treas., 83 Ohio St. 36.

Personal property which is not needed for public use, or is obsolete or unfit for use, may be disposed of by the county commissioners in the manner prescribed by law. Section 307.12, Eevised Code. All of the duties prescribed by the statute devolve upon the board of county commissioners. Likewise, it is the province of the board of county commissioners to make contracts for the county, and no other officer can bind the county by contract, unless by reason of some express provision of law. 14 Ohio Jurisprudence 2d, Counties, Section 221, p. 369. If the proper carrying out of the statutes involves the exercise of judgment or discretion, the power is vested in the commissioners. May this power be delegated to another? The answer seems to be that it may not.

Where the powers of judgment and discretion are by law reposed in a public officer, the presumption is that such officer was selected because of his fitness and competency to exercise that judgment and discretion, and unless the authority to do so is expressly conferred upon him, he may not delegate his powers and duties to another. 44 Ohio Jurisprudence 2d, Public Officers, Section 65, p. 552.

The agreement which the plaintiff seeks to enforce in his first cause of action was one which involved the exercise of discretion, could not be delegated to another than the defendants themselves, was in contravention of the law, and was, therefore, void. Buchanan Bridge Co. v. Campbell, 60 Ohio St. 406. The plaintiff was required to take notice of the extent of authority conferred by law on the person with whom he dealt. City of Cleveland v. State Bank, 16 Ohio St. 236.

Plaintiff’s first cause of action does not state facts which show a cause of action against the defendants, and as to said first cause of action the defendants’ demurrer is sustained.

May the plaintiff then recover “a fair and reasonable charge for the use of his land for the storage of said materials” as set forth in his second cause of action? Stated in another way, the express contract being void, may the plaintiff maintain his action upon an implied contract?

A similar proposition was involved in Buchanan Bridge Co. v. Campbell, supra, and was answered thus:

“But it is urged that the express contract being void, the case is the same as if no contract had been made, and as if the commissioners had received and retained the bridge without an express contract.
‘ ‘ The answer to this is that the commissioners have no power to bind the county in that way, and to allow such a course to be pursued would permit the evasion of the statutes. The contention in this case is not as to the amount to be paid for the bridge, but whether the county shall pay at all. To say that the commissioners accepted the bridge, and retained it, and promised to pay what it is reasonably worth does not aid the plaintiff. The commissioners cannot purchase supplies upon the reasonably worth plan, and no one is permitted to deal with them on that plan. The statute is the only authority and guide for both parties. In this case both parties have acted in disregard of the statute, and the court will leave them where they have placed themselves, and refuse to aid either.” 60 Ohio St. 426.

The courts have consistently held that, in Ohio, the common-law rule that political subdivisions are liable the same as individuals to pay, as upon- an implied promise, for labor done or materials supplied and used, has no application, since the statutes provide the only manner of entering into a public contract, and there can be no implied contract or obligation on the part of a political subdivision, and no implied liability. For a discussion of the Ohio rule see annotation 84 A. L. R. 936, 952.

It is true, as argued by the plaintiff, that a board of county commissioners may so bind a county by their acts as not to be permitted to avail themselves of their own neglect or dereliction of duty, and thereby escape liability. Wilder v. Commissioners, 41 Ohio St. 601; Bruns v. Hirt, 52 Ohio App. 325. Yet when, as here, the contract itself is void, the courts will not lend their aid to enforce it, either directly or indirectly. Comstock v. Village of Nelsonville, 61 Ohio St. 288.

Plaintiff’s second cause of action does not state facts which show a cause of action against the defendants, and as to said second cause of action the defendants’ demurrer is sustained.

Whether, on the allegations as stated, the plaintiff may have a cause of action against one other than the board of county commissioners need not be decided in this action.

The parties will journalize according to rule, and the plaintiff may have thirty days to amend after the journal entry is filed, failing in which the petition will be dismissed.

Judgment accordingly.  