
    (Fulton County Common Pleas.)
    STATE ex rel. FILES v. BIDDLE et al.
    No recovery where terms of statute is not complied with — Where county commissioners have disobeyed the provisions of the statutes as to letting a contract for a bridge, a company who knowingly enters into a contract to furnish such bridge, cannot recover therefor, although there may have been no corrupt motive in disobeying the law, and although the terms of the contract are fair and reasonable, and the county has received the benefits of the contract.
    The county commissioners purchased a bridge of the Buchanan Bridge Company, at a total cost of about $1,700, without advertising as required by statute; the bridge was furnished and erected, and the prosecuting attorney then brought an action to enjoin the commissioners from paying for the bridge out of the funds of the county. This case was taken on^ appeal to the circuit court of the sixth circuit, and affirmed, with the modification that the injunction was made perpetual, but without prejudice to the rights of the defendant to pursue any remedy they might have in an action for the reasonable value of the bridge.
   SHEETS, J.

The relator. John Q. Files, as prosecuting attorney of Fulton County, Ohio, brings this action, averring in his petition that about August. 1894, the defendants, George W. Walters and Jonathan C. Cornell, two of the commissioners of Fulton County, purchased at private sale of the defendant, The Buchanan Bridge Company, of Bellefontaine, Ohio, an iron bridge, both sub and superstructure, costing in the aggregate upwards of $1,700; which bridge was, by the terms of the agreement, to be erected across Bean creek, in said county, and was to be paid for out of the bridge fund of the county, and that said bridge was afterwards furnished and erected across said creeK.

The relator further avers that no plans and specifications for said structure and no estimate of the cost thereof, as required by section 795 of the Revised Statutes, were ever procured by said commissioners ; that there was no advertising for bids for the furnishing of said bridge, and the contract therefor was not submitted to the prosecuting attomej for his approval, and never had his approval, as required by sections 798 and 799 of the Revised Statutes.

That no record of any proceedings whatever appears upon the journal of said commissioners or elsewhere in the auditor’s office, showing that any contract had been let for the purchase of said bridge, or that the commissioners contemplated the erection of any bridge over said -Bean creek. That the relator had no knowledge of the proceedings complained of until some time m the month of December. 1894.

It is also averred that the defendants, the commissioners, are about to authorize the issuing of a warrant on the treasury of Fulton county, and the auditor will issue his warrant in payment for said bridge, unless restrained from so doing. •

The'prayer of the petition is that payment for said bridge out of the county treasury of Fulton, be perpetually enjoined.

The defendant, The Buchanan Bridge Company, answers averring that it has sold its claim for said bridge to E. L. Barber; that the price of the superstructure was $997.50, and that the steel piles weighed 20.330 pounds, and amounted to the sum of 711.55, computed at cents per pound, being the contract price therefor; also denying certain averments of the petition, and averring that the bridge was sold in good faith and for a reasonable price.

Defendant, E. L. Barber, also answers averring that he purchased-of the Buchanan Bridge Company its claim against Fulton county for the bridge referred to in plaintiff’s petition ; that he purchased the claim prior to the commencement of this action, and for a full and adequate consideration.

At the trial of the case substantially, all the averments of the petition were proved, there being no material conflict in the evidence.

It also appeared in the evidence that the commissioners, or rather the two above referred to, had first contracted for a low truss bridge, 90 foot span, at S997.50. Afterwards the contract was changed to a high truss bridge, at an additional cost of $225. The price of the high truss birdge, as named in the contract, was the same as the low truss bridge, i. e., $997.50.

This additional $225 for the high truss bridge was to be paid by increasing the legitimate price of the piling just that sum. And this was done, as stated by the agent of the bridge company, for the purpose of evading the statutes. And in carrying out this arrangement the number of pounds of piling was reported to these two'commissioners, and accepted by them, at 20,330 pounds, while the actual weight was less: than 14.000 pounds.

So the question before the court is: Is the contract for the purchase of this bridge-void, and should the payment therefor be enjoined?

The Revised Statutes, section 795, provides: That plans should be procured and estimates and specifications made by a competent engineer in all eases where it becomes neceisary for the commissioners to erect any superstructures 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, superstructure or addition.

Section 796 provides: 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 of other plans from bid ders, 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 office of the auditor.

Sectio 797 provides: 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: When the esti mated cost of any bridge and the substructure thereto does not exceed $1,000,the same may be let at private contract without any publication.

Section 799 provides: All contracts exceeding $1,000 shall be submitted to the prosecuting attorney and receive his-endorsement, or the same shall be null and void.

These proivsions of the statute were not observed by the commissioners in any particular.

If these provisions of the statutes are mandatory then the injunction must be made perpetual; if directory only, and the contract is fair and just, then the injunction should be refused. It is conceded at the outset that the defendant Barber gets no higher rights than the bridge company.

This case has been so thoroughly and ably presented by counsel that there remains but little for the court to do but verify the cittation of authorities and announce its conclusions.

Counties and townships are quasi corporations, and are political subdivisions of states, and have no powers except those expressly given by statute. This proposition is elementary, and reels no citation of authorities.

The statutes provide under what circumstances the commissioners may levy a tax, contract for and erect bridges, and they carefully prescribe in what manner this power shall be exercised. Experience has taught us that public servants are not always honest; that persons making contracts with them are sometimes corrupt, and, in order to make an advantageous contract, they are willing to share their profits with these public servants, and this always at the expense of the tax payers. The ingenuity of the legislatures of the different states has been taxed from time to time in devising ways and means to make corruption, favoritism and extravagance impossible in the letting of public contracts. And the result is the present fabric of legislation providing the proceedings and manner in which public contracts shall be let.

Courts have been called upon again and again to construe this class of legislation, and determine whether the penalty for disobeying its provisions shall render the contract void, although there may have been no corrupt motive in disobeying the law, and although the terms of the contract may be fair and reasonable, and although the municipality may have already received the fruits of the contract.

I will call attention to a few of the adjudications of other states before recurring to those of our own state upon this subject.

In 4 Am and Eng. Ency. of Law, p. 359, the following general principle is announced : 1 ‘The statute authorizing a contract must be strictly pursued, or the contract will not bind the county; and the requirements of the statutes must be fulfilled and a contract, unless made pursuant to statutory authority, will not be binding.” And in support of this proposition the author cites decisions from the courts of a large numDer of the different states.

Southerland, in his work on Statutory Construction, lays down the following propositions: “Where the whole object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other manner, no doubt can be entertained that the command is imperative. ” Section 458.

Again: “The special powers given to corporations, to courts or officers must be exercised with strict substantial adherence to all directions of the statute, and acts done contrary to such regulations are simply void.” Section 456-

In 72 N. Y. 463, it Was held: “Where the law requires municipal officers, before entering into contracts, to advertise and to 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 and 20 N. Y, 312. _

_ In Wells v. Detroit (Michigan Supreme Court), 54 N. W. Rep., 897, it was held that failure on the part of the council to procure an estimate of the cost of the construction óf a sewer prior to letting a contract of its construction (as required by its charter), rendered such contract void, and payment for the construction of such sewer pursuant to such void contract might be enjoined.

In so far as I have examined the decisions of the different states upon this question there is no conflict

But coming to the decisions of our own state: Section 2702, Revised Statutes, provides that before a contract involving the expenditure of money shall be entered into by the council of a municipality, the clerk shall first certify that the money required for the contract is in the treasury to the credit of the fund from which it is to be drawn. Construing this statute in Bond v. Madisonville, 2 C. C., 449, it was held-, “where a son tract is entered into between the council of a village and an attorney at law whereby the latter agrees to render professional services to the village in prosecutions under a village ordinance, he to receive, as compensation, the reasonable value of his services; and the clerk does not make the certificate required by this section,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 making of the contract, be definitely ascertained, and the further fact that the services were to be rendered for the preservation of the' peace and good order of the village did not take the contract out of the provisions of this section.”

I might have disposed of this case very briefly by taking the case of the State v. Yeatman, 22 Ohio St. 546, as my guide. As T read this case, it is decisive of the case at bar'. In that case the commissioners of Hamilton county employed one Bean to recopy the plats in the auditor’s office. Although the price agreed upon amounted to more than 8500, the commissioners failed to advertise for bids as required by statute. After the completion of the work the commissioners allowed the bills, but the auditor refused to draw his warrant on the treasury for the amount due under the contract.

Beans sought to mandamus the auditor. This writ was refused for’ the reason that the statute was not followed in making the contract. The court holding that the contract was void.

Day, J-, in delivering the opinion of the court, and in commenting upon the provisions of this statute requiring contracts amounting to more than 8500 to be advertised and let to the lowest bidder, said: “The obvious policy of this section is 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 provisions. If it be conceded, then, that the commissioners had the power to make the contract in question at all (which we do not decido it could only be done in accordance with the provision's o£ this section as it contemplated an outlay of more han 8500. The statute was disregarded, and by its express provisions, the contract was. therefore, void as against the county. The right of the relator to payment out of the county treasury founded solely on the contract, therefore fails.”

J. Q. Files, Prosecuting Attorney, W. H.. Fuller and W H. Handy, for plaintiff.

W. W. Touvelle and Thos. Emery, for defendants.

It is strenuously insisted, on the part of the defense, that whether the contract of purchase was void or not, yet the county having received the bridge, should be required to pay its fair and reasonable value. That is not the law. Upon this subject, Dillon, in his work on Municipal Corporations, says: “That a corporation may be bound by implied contracts made by its agents is now well established; within the practical application of tüe rule, such contracts must be within the scope of the corporate powers, and must not be one which the charter or law governing the corporation requires should be made in a particular way or manner.”

The law required the commissioners to contract for and erect this bridge in a particular way and manner. It must take certain steps, among which it must submit the contract for the construction of the bridge to the prosecuting attorney for his approval, and the penalty for such failure is to render the contract absolutely void by the express terms of the statute. So, then, if the text, as laid down by Judge Dillon, is the law, the commissioners having failed to observe the manner in which they must proceed in order to contract for the construction of this bridge, there can be no implied obligation on the part of the county. The author cites many cases in support of the text and I have not been able to find any case other wise than supporting the principle thus laid down. In other words there can be no im- . plied obligation on the part of the county except when there has been no statutory enactment violated. The defense also insists that the county should not be allowed to obtain the benefits of the void contract and not be compelled to bear its burden ; that the plaintiff is appealing to a court of equity, and the court should determine what is just and equitable between the parties in each particular case. It is true what is justice, and right between the parties is always an element to be considered by a court of equity in determining what should be done in that particular case; yet the caprice of the chancellor is not the sole guide. There are many.well established rules of equity that a court of equity is not at liberty to disregard any more than a court of law is at liberty to disregard well established rules of law. One of these rules of equity is, “that he who appeals to equity must come into court with clean hands;” be must be like Caesar’s wife-“above suspicion. ” Apply this rule to the defendant bridge company in this case, and where does it stand? It knowingly makes a contract with the public officers in violation of every provision of the statutes. More than that, the statutes are purposely evaded, in which the bridge company concurred and assisted. It presented- and had allowed a claim for 8225 less than the agreed price of the superstructure, and presented and had allowed a claim for 8225 more than the agreed price of the piling, and this was done to evade the statute and deceive the public. Why was this done? Whywas this extraordinary method pursued? It. could not have been innocent. The conclusion is irresistible that there must have been an improper motive behind it all ;that there was something shady in the transaction-which the public was not to know.

So, then, it occurs to me that the very proper penalty for such conduct would be-the loss of the pay for the bridge.

Hence the injunction will be made perpetual at the costs of the defendants.  