
    FREDERICK P. SAWYER vs. THE DISTRICT OF COLUMBIA.
    At Law. —
    No. 13990.
    Contracts executed by the plaintiff as one of the contracting parties, and by the president of the board of health the other contracting party,, are not binding upon the District of Columbia.
    STATEMENT OE THE CASE.
    This was an action for the violation of two contracts, which are made part of the declaration in full. By one of these contracts the plaintiff agreed to remove from two wharves on the Potomac River the u night-soil” of the cities of Washington and Georgetown, and place it outside of the corporate limits, until September 2,1873, and with the option, after the expiration of the term originally agreed upon, of extending the contract for an additional period of ten years. By the second contract this extension was agreed upon. Afterward* the board of health rescinded the contracts. For not permitting the plaintiff to go on with the performance of the contract, damages were claimed in the.sum of 8100,000.
    In both these contracts the contracting parties named were the board of health of the District and the plaintiff. Both instruments were signed by the plaintiff and by G. G. Cox, president of the board of health. On behalf of the defendant, the District of Columbia, a demurrer was interposed* denying that the contracts bind the District of Columbia. The hearing of the demurrer was certified to the court in general term in the first instance.
    
      George W. Paschal for plaintiff:
    The contracts, though made by the board of health, are none the less the contracts of the District of Columbia.
    The things contracted to be done were within the power of the board of health, and they were necessary incidents to the power of every municipal corporation; and as the charter nowhere provides how contracts of the District shall be solemnized, they could be appropriately made by either of the boards created by the charter.
    
      Edwin L. Stanton for defendant:
    1st. The contracts do not purport to be made by or in behalf of the municipality known as the District of Columbia. They are made by and in behaif of the board of health. The question arises, then, whether a contract of that board is to be considered in law as a contract of the District of Columbia. If it has that effect, it must be by operation of some law. Plaintiff does not contend that there is any other enactmenthaving that effect except the act of Congress approved ■February 21,1871, entitled “An act to provide a government •for the District of Columbia.” 16 Stats., 419.
    2d. The solution of the question in the case is, therefore, to be obtained from the act of Congress just cited, and especially from section 26 of that enactment. This section provides “ that there shall be appointed by the President, by and with the advice and consent of the Senate, a board of health for said District,” &e., and prescribes the duties of ■this board.
    In Barnes vs. The District of Columbia, 1 Otto, p. 540, the Supreme Court of the United States has construed section 37 of the same act, the provisions of which concermthe board of public works. Under the act of February 21, 1871, the •board of health sustains the same relation to the municipality called the District of Columbia as that which the Supreme Court has adjudged to be the relation of the board of public works. It is “ a portion of the municipal corporation ” called the District of Columbia, and Congress, in prescribing the ■duties and powers of the board of health, has simply prescribed the agents through which the municipality shall attend to a certain kind of municipal business. ' By section*! of the above-mentioned act, power to contract and be contracted with is given, not to any particular officer or board, but to the municipality.
    The board of health could not, without authority of law, exercise powers which Congress conferred, not on that board, but on the District of Columbia, and the control of which belonged to the legislature. The act of February 21,1871, by section 15, enacts that “the legislative assembly shall never ® * * authorize the payment of any claim, or part thereof, hereafter created against the District under any contract or agreement made without express authority of laic, and all such unauthorized agreements or contracts shall he null and void.” Accordingly, the contract sued upon, being without express authority of law, was null and void.
   Mr. Justice Humphreys

delivered the opinion of the court:

Defendant demurred to the declaration, and insists that the District is not bound on such a pretended contract as that sued upon.

We have come to the conclusion that, upon the authority and statutes cited by counsel for defendant, the board of health could not bind the District upon such a transaction.

The demurrer is therefore sustained.  