
    (Fulton County Common Pleas.)
    THE BUCHANAN BRIDGE COMPANY et al. v. WALTERS et al.
    Failure to make a valid contract precludes recovery on a quantum meruit. A countycannot be held upon an implied contract to pay the reasonable value of a bridge which-it has received and erected, when there was-an express contract for the same, which was-void because of a failure to comply with the law in making the same.
    The Buchanan Bridge Company broughtits action against the county commissioners: upon a quantum meruit, and asked a judgment for the reasonable value of the bridge;. to this petition the prosecuting attorney, on behalf of the commissioners demurred.
   SHEETS, J.

This case was submitted at the last term-of this court upon a demurrer to the petition. The petition avers, in substance, that the plaintiffs. The Buchanan Bridge-Go. sold to the defendants, the Board of County Commissioners of Fulton county, the material for a certain bridge and substructure thereto, and that the material for said bridge and substructure was delivered by it at Morenci, Mich. ; that the defendants received said bridge and sub-structure- and removed the same to Fulton county, Ohio, and there erected said bridge upon a public highway and overa stream in Fulton county, and not within the limits of any municipality, and opened the same for public travel about the 3rd day of December, 1891, and ever since said date the bridge-so erected has been used by the people of Fultcn county and the public in general as-a part of said highway.

Also that the defendant commissioners-, agree to pay for said bridge and substruct’•tire the reasonable value thereof within a •reasonable time after the delivery of the ■.same, and that such reasonable time has -elapsed, and the reasonable value of said bridge and substructure was and is 81,658.55, ■and that the defendants, 'commissioners of Fulton county, neglect and refuse to pay 'for the bridge and substructure, or any part thereof.

The prayer of the petition is for judgment against the County Commissioners for the sum of 81,658.55 with interest from January 1, 1895.

The petition does not aver, nor is it •claimed by counsel for the plaintiff that the methods pointed out by the statute to be pursued by the commissioners in making such contracts on behalf of the county, has been followed in this instance, indeed, it is conceded that the failure on the part of 'the commissioners to comply with the law an making the purchase of this bridge, renders the contract therefor void. It is claimed, however, that the county having had the benefit of the bridge erected upon •one of its public highways, should pay the reasonable value of such bridge.

At a former term of this couit in an action brought by the prosecuting attorney for that purpose, it was adjudged that the contract entered into by the commissioners with the plaintiff, The Buchanan Bridge Company, for the purchase of the bridge - referred to in the petition, was void and payment therefor was enjoined. The case was •appealed to the circuit court, where a like judgment was rendered, but' without prejudice to an action at law for the reasonable value of the bridge.

So the question presented b}’ the demurrer .and argued by counsel is: Can the county be held upon an implied contract where there has been aD express contract for the ■same thing and such express contract is void for failure to comply with the law?

Light may be thrown upon this question by examining: First — The statutes violated and the purposes of their enactment. Sec■ond — The nature and extent of corporate powers of counties.

Revised Statutes, section 795, provides: “That plans shall be procured and estimates and specifications made by a competent engineer in all cases where it becomes necessary for the commissioners to erect any substructure for a bridge or bridges or make additions or alterations thereto; such engineer shall also make a full, accurate and complete estimate of each item of expense and the entire aggregate cost of such bridge -and substructure thereto.

Section 796 provides: 'That the commissioners shall determine the length and width of the superstructure; whether the same shall be a single or double track, and shall advertise for furnishing the labor and material ; may receive proposals or other plans from bidders, but these plans must specify the number of spans, the length of each, 'the nature,quality and size of the materials to be used in the erection of such bridge, the strength of the structure when completed, and also whether there is any patent; and the plans and specifications upon and according to which such contracts are awarded shall be kept on file in the auditor’s office.

Section 797 provides: That the plans made in accordance with the two preceding sections, if they relate to the building of a bridge, shall be submitted to said commissioners, county auditor and county surveyor and if approved by a majority of them, shall be kept in the auditor’s office.

Section 798 provides: That when the estimated cost of any bridge and the substructure thereto does not exceed 81, COO, the same may be let at private contract without any publication.

Section 799 provides: That all contracts exceeding 81,000 shall be submitted to the prosecuting attorney and receive his endorsement, or the same shall be null and void.

It is not averred in the petition that any of the provisions of the above mentioned sections were followed,and it is conceded in argument that they were not observed by the commissioners in any particular, in making the contract.

It is the purpose of these statutes that the utmost publicity should be observed in making such contracts, and the purpose of the plans and specifications required was that there could be free and active competition among bidders for the contract, and the purpose of requiring an advertisement was evidently that the public generally should know that such contract was about to be let.

The public has been taught by experience that their servants will sometimes bear watching, and it is a very proper thing'to take temptation out of their way. Indeed the ingenuity of the legislatures of all our states has been taxed from time to time, in devising laws and means to make corruption, favoritism and extravagance impossible, in the letting of public contracts, and so far, at least as Ohio is concerned, it has resulted in the present fabric of legislation providing the proceeding and manner in which public contracts shall be let.

In speaking of this class of legislation the Supreme Court of Arkansas says: “To prevent extravagance from the first source the plan of public letting is adopted, the public is informed of contracts to be let, and its self-interest and rivalry are appealed to for proper offers; to prevent extravagance from the latter source all discretion is withheld from the contracting officer; he is bound to give the contract to the lowest bidder, and cannot let it out for individual gain or reward to another. The method prescribed is well understood, clearly defined and of distinctive character, specially adapting it to a conservation of public interest. ’ ’ 54 Ark. 645.

In speaking of a statute requiring a public letting, Judge Day, in rendering the opinion of the court in Ohio ex rel. Bean v. Yeatman, 22 Ohio St. 553, says: “It is the obvious policy of this section to prevent the public treasury from being plundered by favoritism, rings and frauds, and it ought not to be so construed as to defeat its purpose by a judicial repeal of its salutary pro visions.

Such is the universal holding of the courts, and it is unnecessary to accumulate authorities.

Speaking of the nature and extent of the corporate powers of counties the Supreme Court of Arkansas, in Grange v. Pulaski County, vol. 26, page 37, say: “Counties are political divisions of the state government, organized as part and parcel of its machinery like townships, school districts and kindred subdivisions. They do not derive any of the corporate powers they possess by special charter. Their functions are wholly of a public nature and their creation a matter of public convenience and governmental necessity, and in order that they may the better subserve the public interest, certain corporate powers are conferred upon them. -Whether they will assume these corporate powei s and perform the duties and obligations imposed are questions over Which they have no choice, but their assumption is wholly involuntary.”

In Askins v. Hale County, 54 Ala. 639, it is held that: “While a county has corporate characteristics it is, in no sense, a municipal corporation, but a mere governmental auxiliary and agency possessing no powers and subject to no duty not originating from the statute creating it. ’

In Commissioners v. Meghels, 7 Ohio St. 120, in delivering'the opinion of the court, the judge says: “In the case of a municipal corporation proper, the electors are mediately or immediately invested with very ample control over their agents, not only as to what shall be done, but how it shall be done, and by whom it shall be done. They may exact such guarantees as they deem proper for their own indemnity and may prescribe by law for their government. As between the commissioner and a county all this is wanting. All his powers and duties are prescribed by the supreme legislature, and the elector can exact no control over him whatever, except such as springs from the bare fact of election. ”

See, also, Barton v. Balser, 17 Mo. 189; People v. Ingersol, 58 N. Y. 1.

It has also been repeatedly held that a county being, a political subdivision of a state, cannot be sued, except by the consent' of th state, and unless statutory authority is given to sue, th6 county is not subject to suit by an individual. 68 Am. Decisions, 296, note.

It is insisted by counsel for plaintiffs that Commissioners v. Railroad Company, 37 Ohio St. 205, and Wilder v. Commissioners, 41 Ohio St. 601, sustain the position taken by plaintiffs in this case. It is only necessary to say that it appears in both of those cases that all the preliminary proceedings required by statute to make a perfect contract had been complied with, and the only defect was, the mere failure of the clerk of the board of commissioners to record what they had actually done. The-court held in the cases above cited that the failure of the clerk to do his duty did not render the contract void, but, in both instances, enforced the contract itself. JSio question of an implied contract was raised or discussed in either of those cases, whil in the case at bar, the express contract i void, and plaintiffs are seeking to rely upon-an implied contract.

Counsel also cite and rely to some extent upon the case of Cincinnati v. Cameron, 33-Ohio St. 336, and quote the following proposition of the syllabus: “There is a distinction between those powers of a municipal corporation which are governmental' and political in their nature, and those which are to be exercised for the management and improvement of property. As to, the first the municipality represents the stato and its responsibility is governed by the same rules which apply to a like delegation of power. As to the second the municipality represents the pecuniary and proprietary interests of individuals, and withins the limits of corporate power the rules which govern the responsibility of individuals are properly applicable.” Counsel’, seems to forget the wide distinction between the corporate power of municipalities and that of counties. The commissioners of a. county exercise no powers except such as-are political in their nature and represent' the state. They don’t represent the proprietary interest of individuals and inhabitants of the county, and the case cited has-no application to the case at bar.

A number of cases are also cited which need not be reviewed, but the rule deducible from all of them can go no farther than that where property or money has been obtained from a municipality wrongfully, the-, owner thereof may recover it back.

The question at issue in this case is not: whether the Buchanan Bridge Company-might not have a right to recover its bridge, but whether Fulton county must pay for it. It is insisted that counties, like private-individuals, may be liable upon an implied contract. An implied contract pre-supposesno restrictions upon the contracting parties-to make an express contract with reference to the particular matter in controversy. A contract is implied, only where the contracting parties are laboring under no contractual disability with reference to the particular contract implied, and their conduct has been such that it is reasonable to presume that they intended to make the exact contract which is being enforced by the court, or where one has received a benefit which it would be inequitable for him toretain without rendering an equivalent to the other party.

After a careful examination of the adjudications, the following proposition is clearly deducible from the cases: Where no power-is given a public officer by statute to contract with reference to a particular subject, and the statute is silent as to the manner in which he shall proceed to make that contract, the public may be held liable as upon an implied contract under like circumstances as an individual; but where the power given to contract is required to be exercised in a certain manner, in that event the public can never be held upon an implied contract. And to hold otherwise would be a judicial repeal of the statute.

Adjudications, however, . have been frequent on the question at issue, none of which, so far as I have been able to discover, fully support the proposition contended for by plaintiffs, and nearly all of which are against plaintiff’s contentions, some of which it may be profitable to review.

In 4 Am. and Eng. Ency. of Law, 359, the following proposition is laid down: “Counties being merely parts of the state government, they partake of the state’s immunity from liability. The state is not liable except by its own consent; and so the county is exempt from liability, unless the state has consented. Counties are not liable to implied common law liabilities as municipal corporations are. ’ ’

In 72 N. Y. 463, it is held: “Where the law requires municipal officers, before entering into contracts to advertise and contract with the lowest bidder, a contract made without complying with these requirements imposes no obligation on the municipality. ” Although the work was done, the court further held: “That no recovery could be had therefor upon a quantum meruit.” To the same effect see 68 N. Y. 23; 20 N. Y. 312.

In Richards v. Warren, 31 Ia. 381, it was held: “Acceptance and occupancy of a public building by a county will not enable the contractor to recover of the county, on a quantum meruit an amount in excess of that authorized by vote, caused by changes and extensions of the original plan.”

Heidelberg v. S. N. Francos Co., 100 Mo. 69, was a case in which action was brought to recover compensation for building a bridge longer and higher than the specifications in the original contract called for. A change, however in the contract was made not in conformity to the Missouri statutes, and although the commissioners accepted the bridge under this void contract and payment was made for certain other claims .for work on the same bridge, yet the county was not precluded from denying the validity of the subsequent contract, the court holding that the doctrine of estoppel did not apply to counties, and that the plaintiff in that case was without remedy.

Again, in Townsent v. Holt County, 59 N. W. Rep., 381, was a case similar to that in the 100 Mo., where the commissioners contracted to pay S500 for raising a bridge ten feet higher than the original contract, but failed to advertise for bids as was required by statute; the contractor sought to recover compensation for these additional services. The court held that he was not entitled to recover any compensation for services thus rendered.

In Brown v. First National Bank, 37 N. E. Rep., 158, the following doctrine was laid down by the Supreme Court of Indiana: “The contention of counsel that appellee having received the benefits of the-contract, is estopped to defend against it on the principle that a corporation which, has received such benefit is estopped to assert that it had no power to contract, is unsound, as applied to the case at bar. The rule suggested applies to cases where private rights alone are concerned, while in contracts void as against public policy the. public is interested. A public concern cannot be made a matter of private bargain. A. number of maxims apply to interdict the enforcement of such a contract, and many of the decisions hold that the receipt of benefits and retention of property under such a contract, give no right to recover. ’

In Critchfield v. Warrensburg, 30 Mo. Appeals, 456, it was held that an attorney who has rendered services to the city at the request of the mayor and incoming city attorney, was not .entitled to recover on quantum meruit, on an implied promise from the city when he had sued, as on contract which was not in writing and passed by an ordinance, as required by the statutes-of Missouri.

The case of Ohio ex rel. Seiter v. Hoffman, 25 Ohio St. 328, was a case where the relator sought to recover for services rendeed the city of Cincinnati as superintendent, of street improvements, having been employed by the board of improvements. No-ordinance had been passed authorizing his employment, although the city had power to pass such an ordinance. The Supreme Court held: “His employment was unwarranted, as there was no ordinance or order authorizing it in force at the time of his-employment, or at the time the services-were performed, and therefore created no-liability against the city.’

In the case of Brown v. Madisonville, 2. C C., 449, it was held that where a contract-is entered into between the council of a village and an attorney-at-law whereby the latter agreed to render professional services to the village in prosecutions under a village ordinance, for which he was to receive as compensation the reasonable value of his services; and the clerk does not make a certificate that there is money in the treasury applicable to that purpose, as required by section 2702 of the Revised Statutes of Ohio, such contract is absolutely void, and no recovery can be had for any services rendered' thereunder. The fact that the amount to be-paid-was uncertain, and could not, at the maxing of the contract, be definitely ascertained, and the further fact that the services were to be rendered for the preservation of peace and good order of the village, did not take the contract out of the provisions of this section.

It is finally insisted that to hold that the Buchanan Bridge Company is without remedy, is to make the statute aD instrument of fraud and permit the commissioners to take advantage of their own wrong. The Buchanan Bridge Company was bound, in law, to know the extent of the powers of the commissioners, and did know. It is bound to know whether the commissioners were obeying the law or violating the law, and knowing that the commissioners were violating the law and dealing with them with that knowledge, it is in no position now to say that it has been taken advantage of or that there is any equity arising in its favor.

W. W. Touvelle aud Thomas Emery, for plaintiffs.

John Q. Files, Prosecuting Attorney, for defendants.

It is clear that the demurrer should be sustained and the petiiton dismissed, and such will be the judgment of the court.  