
    The Commissioners of Lake County v. The Commissioners of Ashtabula County.
    1. A suit can not be brought by one county against another, except for a cause authorized by statute.
    2. Under the clause in the act of April 4, 1866 (63 Ohio L. 93), which provides for the repairing, by the joint action of the commissioners of the counties interested, of certain highwaj'-s damaged, as therein described, on or near the lines of two or more counties, before the duty of making the repairs attaches to the commissioners of either county, their concurrence is required as to the expediency of the work proposed to be done.
    3. Where such repairs consisted in the building of a bridge, which was built solely under the authority and direction of the commissioners of one of the counties, the commissioners of tbe other county having refused to concur therein, no action can be maintained by the former against the latter, to recover contribution for the money so expended.
    Error to the District Court of Lake county.
    The cause came into the Court of Common Pleas of Lake county, by appeal from the decision of the board of commissioners.
    The following petition was filed in the Court of Common Pleas:
    “ The plaintiffs say that they are the commissioners of the county of Ashtabula, in the State of Ohio, and that heretofore, to wit, on the 1st day of September, in the year 1867,. one of the principal public highways, to wit, commencing' at Lake Erie, on the line between the counties of Lake and Ashtabula, and running thence south on a line between the two counties, which said highway then did and still does traverse both'of said counties of Lake and Ashtabula, had become and then was, by wearing of freshet, greatly damaged, and a bridge across Grand river, upon said highway,, near the line of said counties, had before that time become,, and then was, entirely destroyed, and it then and there was necessary, for the convenience of public travel, as well for the citizens of said county of Lake as for the citizens of said county of Ashtabula, that said highway should be repaired by the rebuilding of said bridge across said Grand river, on or near the line of said counties of Lake and Ashtabula, and said commissioners of said county of Ashtabula then and there requested the commissioners of said, county of Lake to assist and aid in the repairing of said highway and in the rebuilding of said bridge; but the said commissioners of the said county of Lake then and there refused, and, although often requested, have ever since neglected and refused so to do. And afterward, to wit,, on or about the 1st day of December’, 1867, the said commissioners of said county of Ashtabula entered into a contract, and commenced the repairing of said highway, by the rebuilding of said bridge on said highway, near the line of said counties of Lake and Ashtabula, which said repairs- and said bridge so commenced were completed on or about the 1st day of July, in the year 1868, and they say that the costs of said repairs and the erecting of said bridge amounted to'the sum of $9,344.61, which said sum has been fully paid therefor by the said commissioners of Ashtabulacounty. And the said commissioners of said county of Ashtabula, acting for and on the behalf of said county of Ashtabula, afterward, to wit, on the 2d day of March, 1869, at the March session of the commissioners of said county of Lake, then and there being held at the court-house in Painesville, in said county of Lake, and while said commissioners of said county of Lake were in open session, presented their claim and demanded that the said commissioners of the said county of Lake should pay to the said county of Ashtabula one-half the amount so expended in repairing-said highway and rebuilding said bridge, to wit, the sum of $4,672.30, which said claim and demand was then and there rejected by the said commissioners of said county of Lake, and they then and there refused to allow or to pay the same or any part thereof, from which decision and refusal to allow or to pay said claim the said commissioners of the said county of Ashtabula appeal to this court, and they ask that the said county of Lake may, by the order and judgment of the court, be compelled to pay the said sum of $4,672.30 to the said county of Ashtabula.”
    The commissioners of Lake county demurred to the petition on the ground that it did not contain facts sufficient to constitute a cause of action.
    The Court of Common Pleas sustained the demurrer and dismissed the petition.
    On error, the District Court reversed the judgment, on the ground that the court erred in sustaining the demurrer, and remanded the case for further proceedings.
    The present petition in error is prosecuted to reverse the-judgment of the District Court.
    
      
      Estep Burke, and J. B. Burrows, for plaintiff in error:
    An action can' not be brought by or against a county in '•■the. absence of express provisions of the statute.
    The commissioners of a county can bring no suit, make no contract, or perform any official act, except as provided by statute. The State v. Yeatman, 22 Ohio St. 546; Stetson v. Kempton, 13 Mass. 271; Smith v. Comm’rs of Portage Co., 9 Ohio, 26; Vincent v. Nantucket, 12 Cush. 103; Halstead v. Mayor, etc., 3 Comst. 430; Chemung Canal Bank v. The Board of Supervisors, 5 Denio, 110; Hodges v. City of Buffalo, 2 Denio, 110; Cornell et al. v. Town of Guilford, 1 Denio, 519; Martin v. Mayor of Brooklyn, 1 Hill, 545; Cuyler v. The Trustees of Rochester, 12 Wend. 165; Hood v. Mayor of Lynn et al., 1 Allen, 103; The State v. Comm’rs of Franklin Co., 21 Ohio St. 648; Steines et al. v. Franklin Co. et al., 48 Mo. 167; Parson v. Goshen, 11 Pick. 396; Hopple v. Brown Township, 13 Ohio St. 311; Keyes et al. v. Westford, 17 Pick. 273; Dill et al. v. Wareham, 7 Met. 438; Comm’rs, etc. v. Mighels, 7 Ohio St. 109; Bonesteel v. Mayor, etc., of N. Y., 22 N. Y. 162; People v. Stout, 23 Barb. 349; Griswold v. Comm’rs of Summit Co., 23 Ohio St. 600.
    The petition does not state a cause of action growing -out of a statute, nor does it aver a compliance with the statute in form or substance, nor is the action authorized by statute. S. & C. 244, sec. 7; S. & S. 89; 7 Ohio St. 109; Archer v. Comm’rs of Allen Co., 3 Blackf. (Ind.) 501; Treadwell v. Comm’rs of Hancock Co., 11 Ohio St. 183.
    The act of April 4, 1866 (63 Ohio L. 93) grants authority only in the manner, at the time, and under such •contract as the commissioners of the counties interested •shall deem expedient. It is their joint discretion, and not that of any one board. Nothing less than a majority of the commissioners of both counties could exercise the powers conferred by the act. Crooker v. Crane, 21 Wend. 218; Ang. & Ames on Corp., secs. 501, 502, 503; Whiteside v. The People, 26 Wend. 634; The State, etc. v. Wilkesville Township, 20 Ohio St. 288; Downing v. Rugar, 21 Wend. 178.
    
      It is a settled rule of law that county commissioners and. public officers can not act where there is a “want of specific power.” Parcel v. Barnes, 25 Ark. 261, 272; Green v. Beeson, 31 Ind. 7; Commissioners v. Mighels, 7 Ohio St. 109; The State v. Yeatman, 22 Ohio St. 546; Granger v. Pulaski, 26 Ark. 37; People, etc. v. Comm’rs of Seward, 27 Barb. 94; People, etc. v. Supervisors, 18 How. (N. Y.) 152; Same v. Same, 21 Ib. 288.
    
      Simonds Cadwell, for defendants in error :
    1. The statute passed March 30, 1868, S. & S. 89, gives - county commissioners ample power to sue for any claim due their county, and would seem to be broad enough to-' embrace a claim of this kind.
    2. Did the commissioners of Ashtabula county pursue the-proper remedy ? Section 9 (1 S. & C. 251) compelled us to ■ first present our claim to the commissioners of Lake county. It was so presented. The commissioners of Lake county rejected it. Then our course was to appeal to the Common Pleas. See sec. 18, 1 S. & C. 247; 5 Ohio, 490; 8 Ohio St. 357.
    This is not a claim where the “ amount due ” is fixed by law or authorized specially to be fixed by any other person or tribunal; hence this was our proper remedy, and it seems to us our only remedy.
    It is an invariable rule of construction that'statutes which affect public interests are mandatory, and the word “ may ” ' in all such cases is construed to mean “ shall.” 50 Maine, 518, 529; 39 N. H. 435; 3 Hill, (N. Y.) 612; 9 How. (U. S.) 248.
    But in this case the statute in its own terms is as positively mandatory as language can make it.
    The,petition states and the demurrer concedes the facts, constituting just such a case as is contemplated by the act above quoted. It is a maxim, that for every wrong there - is a remedy. The plaintiffs "in error concede the wrong,., but deny that we have any remedy.
    
      ’ The construction of this act, as claimed by counsel for plaintiffs in error, makes it — the act — a dead letter.
    It is the universal rule of all courts to so construe statutes that the will and intention of the legislature shall be •carried out, and never, if possible, will the courts permit ■that intention to be defeated. 3 Hammond, (O.) 198; 3 Cow. (N. Y.) 89; 15 Johns. 358; 1 Pet. 64; 2 Pet. 662; 3 Mass. 523; 12 Mass. 383, 385; 15 Mass. 205; 30 Vt. 746; 28 Vt. 354; 6 Ind. 354.
    “ When a statute directs a thing to be done, it authorizes the performance of whatever is necessary to execute its commands. Thus an act increasing salaries imposes the burden, though no provision is made to meet it.” Green v. New York, 2 Hilt. N. Y. Com. Pl. 203; 20 U. S. Dig. 886, sec. 5.
    Now, what was the intension of the legislature ? Manifestly this : that the public travel should not be impeded ■or rendered unsafe, and to impose the positive duty upon the commissioners of each county of providing for such contingencies, and also to impose upon each county the positive obligation to meét the necessary expense.
    The plaintiffs in error cite the case of The Comm’rs of Hamilton Co. v. Mighels, 7 Ohio St. 109, and claim that the county of Lake can not be charged with this liability, for the reason that there was no contract entered into by the-■commissioners of that county.
    In reply, we say that the law having declared the posi-tive duty and positively fixed the liability, then, in default of performance of the duty, an implied contract or obligation to pay and discharge that liability necessarily arises.
   White, J.

The cause of action in this case is claimed to-arise on the act of April 4, 1866, amending section 3 of the act further to. prescribe the duties of county commis•sioners, passed April 8,1856. 63 Ohio L. 93.

In the passage of the amendatory act, the proviso, doubtless by inadvertence, is made to precede the main body of the section. The transposition, however, does not affect the sense.

In the main body of the section, it is provided that the county commissioners shall not thereafter make any purchase, or enter into any contract or engagement for the erection of any infirmary, court-house, jail, bridge, culvert, or :any other public building or improvement, by which the ■expenditure of a larger amount of money is involved than ten thousand dollars, without first submitting the policy of •such outlay to the voters of the county at an election in the mode prescribed. And it is declared that all purchases made, or contracts entered into, contrary to the above provision, shall be absolutely void as against the county, unless the policy of such outlay shall first have been approved by a majority of -the votes cast at such election.

Then follows a proviso which it is not necessary to notice.

The proviso containing the clause in controversy is as follows:

“ Provided, also, that in all cases where, by freshet, fire, tempest, or other casualty, any bridge or bridges in any county has been or shall be destroyed, in whole or in part, so as to impede or render unsafe the public travel, and, in the opinion of the county commissioners of such county, the exigencies of the public and the safety of public travel will not admit of the delay in building or restoring such bridge or bridges as may be required for the purpose of submitting the question to the voters of such county, as is above provided, then, and in such cases, it shall be lawful for the commissioners of such county, .without first submitting the same to the voters of the county, to borrow any sum of money which maybe necessary to rebuild or restore such bridge or bridges, not exceeding the sum of fifteen thousand dollars.” Then follows authority to issue bonds for the debt so contracted, and to levy an extra tax to pay them.

Next comes the clause on which the action is founded. It is as follows:

“ That whenever any one or more of the principal public-highways have been so greatly damaged, or entirely destroyed, by freshet, land-slide, wearing or changing of water-course, or other unavoidable casualty, on or near the lines of two or more counties, which said counties shall be-traversed by the road or roads so damaged, the commissioners of said counties interested shall repair such damages by erecting a bridge or bridges, changing said road,, or by earth-work, as said commissioners may deem expedient, to be paid for in equal proportions by said commissioners.”

The fourth section of the original act declares, that “ it shall be essential to the validity of every contract entered, into by the county commissioners, or order made by them,, that the same shall have been assented to at a regular or special session thereof, and entered in the minutes of their proceedings by the auditor.”

By the act establishing boards of county commissioners,, and px-escribing their duties, power is given to such boards to make any necessary order or contract in relation to the-building and repairing of bridges within their respective-counties; and if any bridge or bridges within any county shall be destroyed, authority is given the commissioners to have the same rebuilt, if they believe the public interest will be subserved thereby. 1 S. & C. 245, sec. 11.

The act of May 1, 1852, authorizing the commissioners-of two or more counties to build bridges jointly, in certain cases, provides, “ That whenever it shall become necessary for the public convenience to bridge any stream of water which shall be on or near the lines of two or more counties,, which said counties shall be traversed by the road or roads on which said bridge is needed, it shall be lawful for the commissioners of such counties interested to build or authorize the building of such bridge jointly, to be paid for in proportion as said commissioners may agree upon.” 1 S. & C. 249.

The foregoing being the state of legislation bearing on the subject, the question is : Does the petition show a cause of actiou ?

No argument is necessary to show that a suit can not be brought by one county against another, except for a cause authorized by statute. The counties themselves being the creatures of the statute, all their rights and liabilities must, originate from the same source.

Authority is conferred upon the commissioners to build or repair bridges in their respective counties, when the same is required by the public interest. So, also, when it is necessary for the public convenience to bridge a stream which is on or near the lines of several counties, traversed by the roads on which the bridge is needed, the commissioners of such counties are authorized by their joint action to build such bridge.

In these cases no liability is created against the county,, except for work which has been authorized to be done by the commissioners.

In the case before us, the bridge was built solely under the authority and direction of the commissioners of Ashtabula county.

The clauses of the statute relied on to support the action,, contemplates, under the circumstances therein described,, the joint action of the commissioners of the several counties interested in repairing the highway. But before the duty of making the repairs attaches, under this clause, to the commissioners of either couuty, their concurrence is¡ required as to the expediency of the work proposed to be done. The determination of such expediency requiresthe exercise of judgment and discretion on the part of the commissioners of each county, of which they can not be deprived-

■ "Where it is the duty of a board to exercise its discretion,, and it refuses to act, it may be compelled to do so by mandamus; but the writ can not be used to control the discretion of the board. Whether resort could have been had to this remedy to compel the commissioners of Lake county to act in reference to the repairing of the highway in question, it is unnecessary here to inquire.

The fact that they refused to concur in the doing of th& work that was done, precl udes any right of recovery against them on account thereof.

Judgment of the District Court reversed, and that of the 'Court of Common Pleas affirmed.

Day, C. J., MoIlvaine and Rex, JJ., concurring. Welch, J., not sitting.  