
    Buchanan Bridge Co. v. Campbell et al., Commissioners.
    
      County commissioners contract for erection of bridge — Disregarding statutes — Such contract is unlawful and void — No recovery against county for value of bridge.
    
    A contract made by county commissioners for the purchase and erection of a bridge in violation or disregard of the statutes on that subject, is void, and no recovery can be had against the county for the value of such bridge. Courts will leave the parties to such unlawful transaction where they have placed themselves, and will refuse to grant relief to either party.
    (Decided June 13, 1899.)
    ERROR to the Circuit Court of Fulton county.
    The amended petition, filed by the bridge company in the court of common pleas is as follows:
    “Now comes the plaintiff, and by leave of the court first duly granted to file its amended petition herein, says:
    The said plaintiff, The Buchanan Bridge Company, is a corporation duly created and existing under the laws of Ohio, and having its home office and principal place of business at Bellefontaine, in the county of Logan, in said state.
    1. The said plaintiff as and for its first cause of action against the said defendants, the Board of County Commissioners, of the county of Fulton, in the state of Ohio, say: That on or about the first day of November, A. D. 1894, • the said plaintiff company, at the special instance and request of the defendant Board of County Commissioners, of Fulton county, in the state of Ohio, sold and delivered to the said defendant board, free on board of cars at and in the village of Morenci, in the state of Michigan, all of the iron and steel material of and for the support of a bridge and consisting of eight steel piles, seven inches in diameter and twenty feet long and weighing eighty pounds to the foot in length, in all, 12,800 pounds, of the value of three and one-half cents per pound; also eight caps of and for said piles, two steel beams, also sway rods, bolts and nuts for the proper fastening and holding in place of said material in their designed use, and all weighing two thousand and eight hundred and twenty-seven pounds of the value of three and sixty-five_one hundredths cents per pound, making the sum of five hundred and fifty-three dollars and five cents, and at the same time and place, at the like instance and request of the said defendant board, the said plaintiff company sold and delivered to the said defendant board, free on board of cars, all the material of and for the superstructure of a ninety foot span high truss bridge of fourteen feet clear roadway, of the kind and style manufactured by the said plaintiff company, and all in conformity to plans and specifications thereof, exhibited by said plaintiff company to said defendant board, and of the fair market value as and when so delivered of the sum of eleven hundred and forty-seven dollars and fifty cents, in consideration whereof the said defendant board] promised to pay said plaintiff company, within a reasonable time thereafter, so much as the said several lots and quantities of material were then and there reasonably worth.
    That immediately upon the said deliver}?- of the said materials, the said defendant board paid the freight charges thereon, which should have been paid by plaintiff company, amounting to the sum of forty-two dollars and no more, and thereupon the said defendant board took all and singular the said materials from the said cars at the said village of Morenci, in the state of Michigan, and brought the same to the state of Ohio, and to the said county of Pulton, and there appropriated and used the same in and about the erection and construction of the substructure and superstructure, respectively, of a county bridge upon a public highway, to-wit, a county road of and in the said Pulton county, and not within any municipality therein, and on or about the third day of December, A. D. 1894, the bridge bo by the defendant board constructed was by the said board thrown open to and hath ever since said date been used by the general public as and constituting a part of the said public highway, and was and is appropriate and necessary to and in the use of said highway, which is much traveled by the public.
    That the county commissioners of said county, prior to purchasing and ordering from The Buchanan Bridge Company, of the materials aforesaid, did not give any public notice for public letting of the contract for furnishing either material or labor for either the substructure or superstructure, or both, of the said bridge so to be built, and said commissioners never caused any memoranda or minute concerning- said purchase or order for said bridge material to be entered on the county commissioners’ journal, and no plans, specifications or estimates were made by the county surveyor, or other civil engineer or architect at the instance of the county commissioners for the said proposed bridge, and no contract for said bridge was ever submitted to the joint action of the county commissioners, county auditor and county surveyor for approval by them, or a majority of them, nor the prosecuting attorney of the county for his approval.
    That the said, The Buchanan Bridge Company, having, as aforesaid, in good faith, delivered to the defendants the said bridge materials as aforesaid pursuant to its said purchase, order and request, and said materials having been accepted and received by defendant and taken by it from Morenci, Michigan, and used by said defendant county board, in the construction of the bridge aforesaid, upon the completion of the said bridge by the defendant board, out of and with the said materials, so as aforesaid furnished by plaintiff, the commissioners of said county, at the request of said The Buchanan Bridge Company, plaintiff, signed and delivered to it two (2) certain warrants or orders in the form customarily used by defendant to the auditor of said county, directing the said auditor to issue or draw his warrant or warrants on the. treasurer of said county for the payment of the same, or the price of the materials agreed upon between the said The Buchanan Bridge Company and said defendant board, less the sum of $42 which had been advanced and paid by the defendant board, as freight charges as aforesaid upon said materials; said auditor was by the said orders aforesaid directed to issue his warrant or warrants to the said treasurer on January 1, 1895, at which time it was understood and agreed between the parties that said bridge materials were tó bé paid for as aforesaid.
    ‘.j'That after the issuing of said orders by the county commissioners, and prior to January 1, 1895, at which date the same were to be paid by the issue of warrants directly upon the county treasurer by said county auditor, an action was begun in this court by the prosecuting attorney of said county against the commissioners of said county, the auditor and treasurer of said county, The Buchanan Bridge Company and others seeking to enjoin and for the purpose of enjoining payment for said bridge materials, and the issue of any warrant by the county auditor upon the county treasurer of said county in payment of the aforesaid orders so issued by said county commissioners, as aforesaid, for the reason that said county commissioners had not procured any plans or specification to be made for said bridge, or any estimate of its cost, and had not advertised for bids or sealed proposals for the furnishing of materials therefor, or the work of constructing th’e same, and had not caused any contract for the same to be submitted to the' prosecuting attorney of the county for his approval, whereupon a temporary injunction or restraining order was issued' restraining or enjoining the payment oí' said orders, and enjoining the said auditor from issuing his warrant upon the treasurer of said county to pay the same, and said treasurer from paying said warrant, and enjoining the said county commissioners from allowing or issuing any warrants for the payment of said bridge material.
    Said cause came on for final hearing in this court at its June term, 1895, and said temporary in junetion was, by the decree and judgment of this court, made perpetual; whereupon an appeal was taken in said cause to the circuit court of said county by rhis plaintiff, and upon the final hearing of said cause in said circuit court at its November term, 1895, a like judgment and decree was rendered by said circuit court, except that the injunction decreed by said circuit court and its judgment in said cause was expressly made and rendered without prejudice to the right of plaintiff to bring its action against the defendant board, as upon an implied contract for the recovery of so muchas' the said bridge materials, when and where delivered to and received by defendant, were reasonably worth.
    That after the rendition of said judgment and decree by the said circuit court, to-wit, on March 2, 1896, the plaintiff duly presented its said claim in writing for compensation for said bridge materials to the said defendant, Board of County Commissioners, for allowance and payment and then and there demanded from said defendants that the same be allowed as a valid claim against said county and be ordered paid out of the proper funds of said county, but the defendants wholly refused and declined to allow or pay the said claim, or any part thereof.
    That a reasonable time of and for the payment of the said sums of money hath long since elapsed, yet the said defendant board, though often requested, hath not paid the said sums nor any part of any or either thereof, save and except only the said freig'ht charges; and there is now due and owing from said defendant board to the said plaintiff, by reason of the premises, and for the said' materials so as aforesaid sold and delivered, the full sum of sixteen hundred and fifty-eight dollars and fifty-five cents ($1,658.55), and interest hereon from and after the first day of January, A. D. 1895, at the rate of six per cent, per annum.
    Said bridge materials have been in use by defendants in said bridge ever since December 1, 1894, and the value of the use of the same is fully five hundred dollars ($500) per year and more.
    That notwithstanding the refusal of said defendant board to allow plaintiff’s said claim for compensation for said bridge materials and order payment of the same, said defendants still insist on retaining and using said bridge materials, and give out and assert that they will retain, hold and keep said bridge materials and continue to use the same in said bridge, and that they will not pay plaintiff any compensation therefor or allow their claim for the reasonable value of said materials, or for any amount of compensation whatever.
    Plaintiff therefore prays judgment against the said defendant, Board of County Commissioners of Pulton county, for the sum of sixteen hundred and fifty-eight and fifty-five one hundredths dollars ($1,658.55), and interest thereon at the rate of six per cent, per annum, and they further pray that in the event the court should find that they are not entitled to recover from the defendant the said ' sum prayed for, or the fair or reasonable value of said bridge material, that the court order and direct that the said defendants, upon the surrender of said orders issued by the said county eommmissioners by plaintiff, return and deliver back to plaintiff the said bridge materials, placing the same on board of ears at Morenei, Michigan, where the same were delivered to defendant and in a good and suitable condition; that plaintiff may have suitable and just compensation for the use of said bridge for the time the same was used by defendant, and for all proper and equitable relief in the premises.”
    To this petition the county commissioners demurred, on the ground that said petition does not state facts sufficient to constitute a cause of action in favor of the plaintiff, and against the county commissioners, defendant. The court of common pleas sustained the demurrer, and the plaintiff not desiring to plead further, dismissed the petition and rendered final judgment against the bridge company.
    The circuit court affirmed the judgment, and thereupon the bridge company filed its petition in error in this court seeking to reverse the judgment of the courts below.
    
      W. W. Touvelle and James Hunt, for plaintiff in error.
    We maintain—
    1. That the county commissioners are liable as upon an implied contract, for the fair value of these bridge materials so purchased by them; although the purchase was had without advertising for bids and complying with the other requirements of the statute necessary to make a valid writ - ten contract, when, as in this case, the materials were in good faith furnished by the bridge company and accepted by the commissioners and put up and used by them iri a place where a bridge was needed and required and for which place they had undoubted authority to provide a bridge.
    2. That if the plaintiff in error, cannot recover the fair value of the bridge materials as upon 
      quantum meruit, the county cannot keep them, but Inust make restitution of the same.
    3. If neither compensation nor restitution can be had, the county must pay á fair rental value for the use of such bridge materials.
    We do not dispute the .principle settled by the case of Ohio ex rel. v. Yeatman, 22 Ohio St., 553, but we .contend that while there is probably no case in Ohio, bolding either way upon the question of our right to compensation, under these circumstances,. the doctrine or principle of restitution, however, is settled and established in this case and as bearing upon that principle, we call the attention of the court to the case of Trustees v. Cherry et al., 8 Ohio St., 564; Clark v. United States, 95 U. S. Rep., 539.
    Counties have sometimes been held liable when they have knowledge and beneficial use of anything although the formalities ordinarily necessary to bind them, have not been complied with. 4 Am. & Eng. Ency. of Law, 363; County v. Bradenhart, 16 Pa. St., 488; Salt Lake City v. Hollister, 118 U. S. Rep., 259.
    If a county obtains the money or property of others, the law independent of statute, will compel restitution or compensation. Marsh v. Fulton County, 10 Wallace (U. S.), 676; Louisiana v. Wood, 102 U. S. Rep., 294; San Francisco Gas Company v. San Francisco, 9 Cal., 453; Sedgwick’s Statutes and Constitutional Law, page 73; North Western Packet Company v. Shaw, 37 Wisconsin, 655.
    The principle contended for by plaintiff in error is recognized. Board of Supervisors v. City of Springfield, 63 Illinois, 66; Maher v. City of Chicago, 38 Ill., 266; Brown et al. v. City of Atchison, 39 Kan., 37; Borough of Henderson v. County
    
    
      
      of Sibley, 28 Minn., 515; Dill v. Inhabitants of Wareham, 7 Met., 438; Stamp v. County of Cass, 47 Mich., 330; Waitz v. Ormsby County, 1 Nev., 370; Clark v. County Commissioners, 9 Neb., 516; Utica Ins. Co. v. Scott, 19 John., 1; Utica Ins. Co. v. Cadwell, 3 Wend., 296; Utica Ins. Co. v. Bloodgood, 4 Wend., 652; Dillon on Municipal Corporations, section 750; Chaplain v. County of Douglass, 107 U. S. Rep., 348.
    As bearing upon the principle contended for by-plaintiff in error, we cite the following cases in Ohio: Athens v. R. R. Co., 37 Ohio St., 205; Wilder v. Commissioners, 41 Ohio St., 601; Cincinnati v. Cameron, 33 Ohio St., 336; City of Parkersburg v. Brown, 106 U. S., 487.
    
      W. II. Fuller, Prosecuting ■ Attorney, W. H. Handy and John Q. Files, for defendants in error.
    Statutes governing the commissioners in making contracts for bridges costing over one thousand dollars. Revised Statutes, sections 795, 796, 797, 798 and 799,. 799a, 800, 846, 853, 850, 851, 878, 894 and 1024.
    Our position is that in order to bind a county in a case like the one before us it is necessary that the law as laid down in the sections cited be followed; that there are certain powers given to the commissioners and that in the exercise of those powers the statutes must be strictly followed.. Comrs. Gallia County v. Holcomb, 7 Ohio (Part 1) 232; Treadwell v. Com'rs, 11 Ohio St., 183; Goshen Township v. Shoemaker, 12 Ohio St., 624; Hoople v. Brown Township, 13 Ohio St., 311; The State v. Yeatman, 22 Ohio St., 546; Fornoff et al. v. Nash, etc., 23 Ohio St., 335; The State ex rel., etc. v. Nash, etc., 23 Ohio St., 568; Com'rs of Defi
      
      ance Co. v. Crowey, 24 Ohio St., 492; Miller et al. v. Pearce et al., 2 C. S. C. R., 44; Ruffner v. Board of Com'rs, 1 Disney, 196; 4 Am. & Eng. Ency., 359 and case cited; Pacific Bridge Co. v. Clarksworth Co., 45 Fed. Rep., 217; 1 Beach Pub. Corp., sections 217, 244, 252 and cases cited; 1 Beach Pub. Corp., sections 697, 698; Southerland on Statutory Con., 454-458; Bradg v. Mayor, etc., 20 N. Y., 312; McDonald v. Mayor, etc., 68 N. Y., 23; S. C. 23; Am. Rep., 144; Dickinson v. City of Poughkeepsie, 75 N. Y., 65; Wing v. City of Cleveland, 15 Law Bul., 50; 9 Dec. Re., 551; McCortel v. Bates, 29 Ohio St., 419; Sutro v. Pettet, 74 Cal., 332; s. c., 5 Am. St. Rep., 442; State ex rel. Scott, 56 N. W. Rep., 485 (Neb.).
    We call especial attention to and make a part of this brief the decision of the common pleas judge in passing upon this case below, as the same is found in 3 Ohio Nisi Prius Rep., 173; 4 Dec., 130; 3 Ohio Nisi Prius Rep., 176; 4 Dec., 134; City of Lancaster v. Miller, 58 Ohio St., 558.
    Parties dealing- with a public corporation must take notice of the extent of their powers and the mode of their exercise. Hoople v. Trustees, etc., 13 Ohio St., 311; Com'rs v. Andrews, 18 Ohio St., 50; Boreu v. Com'rs of Dark Co., 21 Ohio St., 311; City of Cincinnati v. Cameron, 33 Ohio St., 336; Clark v. Des Moines, 87 Am. Dec., 423; Donavan v. New York, 33 N. Y., 293; Beach Public Corp., section 691 and note; Cooley Con. Lim., 235 (5th ed.); Townsend v. Holt Co., 59 S. W., 381, (Neb.); Nash v. St. Paul, 11 Minn., 174.
    The doctrine of estoppel does not .apply to counties. 2 Beach Public Corp., section 1659; 2 Pomeroy Eq. Jur., sections 806-813; Tone v. Columbus, 39 Ohio St., 303; Counterman v. Dublin Twp., 
      38 Ohio St., 515; Brown v. First Nat. Bk. Columbus, 37 N. E. Rep., 158, (Ind., 1894); Heidelburg v. Francos Co., 100 Mo., 69; s. c. 12 S. W., 914.
    The disobedience of a statute by a public officer creates an incurable difficulty. The general doctrine of estoppel does not apply to public corporations. Where the mode of exercising a power by the board is prescribed by statute, that mode must be pursued. 103 Ind., 381; 18 Ind. App., 1; 79 Ind., 491.
    ■ What are the powers of the commissioners of a county and in what way do the corporate powers of a municipality differ from those of a county? Com'rs v. Meghels, 7 Ohio St., 120.
    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 hot originating from the statute creating it. Askins v. Hale Co., 54 Ala., 639; Grange v. Pulaski, 27 Ark., 37.
    We have already called attention to the sections of the statute which the petition of plaintiff in error expressly avers were violated.
    , The universal holding of the courts have been that the obvious policy of such laws and inhibitions are to “prevent the public treasury from being plundered by favoritism, rings and frauds” and “they ought not to be so construed as to defeat their purpose by a judicial repeal of” their “salutary provisions. ” Bean v. Yeatman, 22 Ohio St., 553; Fones Bro. Hardware Co. v. Erb, 54 Ark., 645; same case, 13 L. R. A., 353; Farman v. Com'rs, 21 Ohio St., 311.
    Nothing in the petition shows that there is a. scratch of a pen anywhere in the auditor’s office of Fulton county or elsewhere that refers in any manner whatever to the purchase of this bridge. The method pursued, according to the petition, was such as to make a record impossible for there never was a foundation for a record. And in this respect the case afc bar varies very materially from Com'rs of Athens Co. v. Ry. Co., 37 Ohio St., 205; Wilder v. Com’rs of Hamilton Co., 41 Ohio St., 601, cited in plaintiffs brief.
    If the statutes had been complied with in this case the object of their enactment would have been accomplished whether a full record of the same appeared in the auditor’s office or not.
    Plaintiff in error is claiming the right of one of three remedies, viz:
    1. To recover on a quantum meriut.
    
    2. To have restitution of bridge material.
    3. To have fair rental value for use of bridge.
    Defendants in error deny a right of recovery
    upon any terms or conditions whatever.
    1. The county being a political division of a state, can not be sued, except by the consent of the state, and unless statutory authority to sue is given by the state. The county is not subject to suit by an individual. 68 Am. Dec., 296, note; 3 Ohio Nisi Prius, 176; 4 Dec., 134.
    2. This contract was against public policy and void. Beach on Injunctions, section 426; Burelfteld, v. City of New Orleans, 42 La. Am., 235; Dill on Munic. Cor., 457, 464; Beach Public Corp., 243 and note.
    Now applying these rules to the case at bar, if the plaintiff in error can recover from Fulton county the price of the bridge or its fair rental value or the bridge itself, then it has succeeded in evading the statutes and such a decision renders null and void every act of the legislature by which it has sought to protect the taxpayer. Chicago, M. & 
      
      St. P. Ry. v. Wabash Ry., 27 U. S. App., 1; 66 Fed. Rep., 240; 13 U. S. C. C. A. Rep., 426.
    We wish to call especial attention to the case of Parr against the village of Greenbush, 72 N. Y., Appeal 473; Brady against the city of New York, 20th N. Y. Appeals, 312; McDonald v. Mayor, 68 N. Y. Appeals, 23; Newbery v. Fox, 37 Minn., 141; s. c. 5 Am. St. Rep., 830; Young v. Board of Education, 54 Minn., 385; s. c. 40 Am. St. Rep., 340; Mulnix v. Mutual B. L. I. Co. 23 Colo., 81; s. c. 33 L. R. A., 827; Wells v. Saline, 119 N. G., 280; 7 L. R. A., 759.
    The distinction between statutes which do not permit and those which prohibit the making of contracts is clearly pointed out in City of St. Louis v. Davidson; 102 Mo., 149; s. c. 22 Am. St., Rep., 764.
   Bcjrket, J.

This case has been ably argued both orally and on briefs, and many cases cited to the effect, on part of plaintiff in error, that a recovery may be had against a city or county as upon an implied contract, independent of any statute, for value received and retained by such city or county; and on part of the defendant in error, to the effect that when the transaction is in violation or disregard of a statute in a material matter that no recovery can be had. We have no disposition to review or attempt to reconcile these cases. We regard them as having been correctly decided under the statutes and rules of decision in the particular locality, and under the peculiar circumstances of the respective cases.

Whatever the rule may be elsewhere, in this state the public policy, as indicated by our constitution, statutes and decided cases, is, that to bind the state, a county or city for supplies of any kind, the purchase must be substantially in conformity to the statute on that subject, and that contracts made in violation or disregard of such statutes are void, not merely voidable, and that courts will not lend their aid to enforce such a contract directly or indirectly, but will leave the parties where they 'have placed themselves. If the contract is executory^© action can be maintained to enforce it, and if executed on one side, no recovery can be had against the party of the other side.

Experience has shown that this policy is necessary to prevent abuses, and protect the public treasury from depletion by unscrupulous public officers. The abuses as to public printing had be- ■ come so flagrant as to induce section 2 of article 15 to be inserted into the present constitution of this state. That section is as follows: “The printing of the laws, journals, bills, legislative documents and papers for each branch of the general assembly, with the printing required for the executive and other departments of state, shall be let, on contract, to the lowest responsible bidder, by such executive officers, and in such manner, as shall be prescribed by law. ”

In line with the spirit of this section, statutes have been passed providing for the public letting of contracts after advertisement by municipalities and providing that contracts not so let shall be void; and this court has construed those statutes as absolving municipalities from all obligations as to contracts made, work done, or supplies furnished in violation or disregard of such statutes. City of Lancaster v. Miller, 58 Ohio St., 558; McCloud et al. v. Columbus, 54 Ohio St., 439; Ohio ex rel v. Yeatman, 22 Ohio St., 546.

The manner of purchasing, contracting for, and erecting a bridge by county commissioners, is regulated and controlled by statute, and nothing-is left to inference.

Section 795, Revised Statutes, requires that before entering into a contract for the substructure of a bridge, the commissioners shall make or procure some competent architect or civil engineer to. make full, complete and accurate plans • therefor, working plans, accurate bills, showing the exact amount of all different kinds of materials to be used, and also complete specifications of the work to be done, and a full, accurate and complete esti-mate of each item of expense and the aggregate cost of the whole; but the commissioners may re-ceive from bidders on iron substructures the necessary plans and specifications therefor.

Section 796 requires the commissioners to determine ,the length and width of the ■ superstructure of a bridge, whether the same shall be single or double track, and requires them to advertise for proposals for performing the labor and furnishing the materials necessary in the erection of the bridge, and they may cause plans and specifications to be prepared or not, at their option, and they may receive bids or plans and specifications proposed by others, but in such case it must be stated whether there is any patent right upon such plan, or any part thereof. In the advertisement for the proposals the commissioners are required to invite bidders to bid for all or any part of the work or materials, and to state the time and place, when and where the bids will be opened, and at that time and place the bids must be publicly opened and read, and the contract awarded to the lowest and best bidder, and the plans and specifications upon which the contract is awarded must be made a part of the contract, and kept on file in the office of the county-auditor.

Section 797 requires that the plans, drawings, representations, bills of materials, specifications of work and estimates as to the bridge, shall be submitted to the county commissioners, auditor and surveyor of the county, and if approved by a majority of them, a copy thereof shall be deposited with the auditor and safely kept in his office.

Section 798 requires that after the approval of such plans and specifications, etc., the county-auditor shall give public notice in two of the principal papers of the county of the time and place, when and where, sealed proposals will be received for performing the labor and furnishing the materials necessary for the erection of such bridge, and making a contract therefor; which notice shall be published weekly for four consecutive weeks next preceding the day named for the making of such contract. But when the estimated cost of a bridge is less than one thousand dollars, no public letting is necessary.

Section 799 requires the commissioners to award the contract for the substructure of a bridge to the lowest bidder who will give a good and sufficient bond for the faithful performance of his contract. All contracts exceeding one thousand dollars in amount, are - required to be submitted by the commissioners to the prosecuting attorney before any work is done or materials furnished, and if found by him to be in accordance with the law on that subject, and his certificate to that effect is endorsed thereon, then the contract shall have full force and effect, otherwise it shall be null and void.

Section 800 provides that no contract for a bridge or bridge substructure shall be made at a price in excess of, the estimates so required to be made.

Section 850 requires a full record oí the board to be kept by its clerk, to be signed by the commissioners and certified by the president and clerk of the board, and to be received in evidence in all courts of this state.

By section 853 the commissioners are authorized at any regular or special session to make any necessary order or contract in relation to the building of any public bridge.

Section 878 requires that it shall be essential to the validity of every contract entered into by the commissioners or order made by them, that the same has been assented to at a regular or special session, and entered in the minutes of their proceedings by the auditor.

Section 894 provides that no claim against the county shall be paid otherwise than upon the allowance of the county commissioners upon the warrant of the county auditor, except when thé amount is fixed by law, or is authorized to be fixed by some other person or tribunal; but in no case are the commissioners allowed to disburse any public money.

Section 1024 makes it the duty of the auditor to issue warrants on the county treasurer, whenever the proper order or voucher is presented therefor.

To make a valid contract of sale by the bridge company to the county commissioners, and a valid contract of purchase of a bridge exceeding one thousand dollars by the commissioners, it is essen. tial that the foregoing provisions of the statute should be substantially complied with. This was not done. The bridge in question amounted to over one thousand dollars. .One paragraph of the amended petition is fatal to the validity of the contract in question, viz.:

“That the county commissioners of said county, prior to purchasing and ordering from The Buchanan Bridge Company, of the materials aforesaid, did not give any public notice for public let-, ting of the contract for furnishing either material or labor for either the substructure or superstructure, or both, of the said bridge so to be built, and said commissioners never caused any memoranda or minute concerning- said purchase or order for said bridge material to be entered on the county commissioners’ journal, and no plans, specifications or estimates were made by the county surveyor, or other civil engineer or architect at the instance of the county commissioners for the said proposed bridge, and no contract for said bridge was ever submitted to the joint action of the county commissioners, county auditor and county surveyor, for approval by them, or a majority of them, nor to the prosecuting attorney of the county for his approval.”

Whether or not said pretended purchase of the bridge was made at a regular or special session does not clearly appear, but it would seem that if it had been made at any session, that fact would have been averred, followed by an averment that the auditor through mistake or otherwise failed to make a record of the action in fact had by the commissioners. As the amended petition stands it must be construed as conceding that the commissioners were not in either regular or special session when the supposed contract was made. '

No notice of the proposed letting was published; no record of the contract was entered in the minutes of the commissioners by the auditor; no plans or specifications were ever made, approved or deposited with the auditor; no contract was ever' submitted by the commissioners to the prosecuting attorney for his approval, and none was ever approved by him.

These omissions are fatal to the validity of the contract, and by force of the above cited sections of the statute, the contract is totally void and imposed no obligation on either party to it.

The statutes are notice to the world as to the extent of the powers of the commissioners, and the bridge company is bound by that notice. It knew, and was bound to know, that the commissioners had no power to thus enter into a contract, and that a contract thus attempted to be entered into would be null and void and would not bind either party. • ■

It is necessary to so construe the statutes, in order to prevent the evils which induced the enactment of them. If such statutes could be evaded, there would always be found some public servants who would be ready and willing to join in transactions detrimental to the public, but favorable to themselves or some favored friend; and if public officers • should be ever so honest, some persistent agent or salesman would impose upon them, and obtain more out of the public treasury than is justly due. When the provisions of the statute are followed, and all is done openly and publicly, 'the public interests are best conserved, and even then there is often complaint to the effect that some one has been favored.

The plaintiff seeing that the contract must be held to be void, seeks to recover on the ground that the commissioners received and retained the bridge, and promised to pay what it is reasonably worth.

The amended petition pleads an express contract, and where there is a subsisting express con. tract the recovery must be had thereon, and an action can not be had in such case upon an implied contract.

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. 1 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.

Judgment affirmed.  