46 P.2d 539 | Okla. | 1935
The plaintiffs in error, who were plaintiffs below, were undertakers in Anadarko, Okla. On August 4, 1930, they entered into a written contract with the board of county commissioners of Caddo county wherein they agreed to embalm, clothe, furnish graves, conduct funerals, and completely furnish and supervise the burials of such dead bodies as would become a charge upon the county during the fiscal year. For such service plaintiffs were to receive a certain reasonable sum, stated in the contract, for each person buried.
On the date upon which the, contract was made the amount already within the approved estimate for such purposes, and, we may assume already levied as tax and collected, was $5,952.79, designated as the fund for "caring for the poor, burial of paupers, etc." Plaintiffs buried the first dead body on November 6, 1930, some three months after *104 the date of the contract, at which time the fund had been exhausted. Between that date and June 25, 1931, plaintiffs buried 35 dead bodies, amounting to $1,545, and thereafter filed their claim for that amount with the county commissioners, who disallowed it because all the appropriation for caring for the poor and burial of paupers had been exhausted, and was exhausted on the occasion of each of the burials. However, "each burial was authorized by the commissioners," according to the agreed statement of facts.
Plaintiffs filed suit against the county commissioners for recovery of said $1,545. Defendants filed a general denial. The issues were submitted on an agreed statement of facts to the trial court, resulting in a judgment for the defendants on the ground that the contract was in violation of section 26, art. 10, of the Constitution of the state of Oklahoma, which prohibits a county from creating debts in excess of the revenue and income provided for the year in which the debt in question is created. The pertinent part of such section is:
"No county, city, town, township, school district, or other political corporation, or subdivision of the state, shall be allowed to become indebted, in any manner, or for any purpose, to an amount exceeding, in any year the income and revenue provided for such year, without the assent of three-fifths of the voters thereof. * * *"
We have repeatedly held that if the indebtedness created by the municipality's contract is within the income and revenue provided and approved, and if the funds on hand and not already validly obligated for the payment of other indebtedness are sufficient to meet the indebtedness created by the contract on the date it was executed, then the contract binds the county or other municipality, without regard to subsequent misapplication of the fund by the county commissioners. Gentis v. Hunt,
This case is not in either class. The contract did not specify a definite amount to become due, nor was there performance by plaintiffs before the fund was exhausted, thus fixing and determining the portion of the fund which they could claim. It is true that an obligation was created, that obligation being to pay to the plaintiffs the sum specified for each burial. But that obligation could not be called a debt for a sum certain until burials should take place, for there was no obligation on the county to pay until the plaintiffs performed. It may be said that the same thing is true of all executory contracts, but in computing the indebtedness of a county or other municipality for the purpose of complying with the above constitutional requirements, it is necessary that there be definite and certain sums and figures with which to compute. At the time when this contract was made, what figure could be set down for the burial of the poor, so that subsequent expenditures from the same fund could be made on a definite basis? Looking from that date forward, possibly the plaintiffs may bury five bodies, or 50 — there was no definite basis upon which to proceed.
This point was considered in Mayer v. J. T. Jones Sons,
"While it is taken as true that a verbal agreement was entered into between the parties in July that Jones Sons would furnish such supplies as might be needed and required for the poor, yet in reality no specific contract was made for any definite amount at any fixed price, and it is a record fact that the revenue provided for such fund for said year had all, except a balance of $14.90, been paid out before Jones Sons furnished any supplies or filed any claims therefor.
"Thus the facts present a clear case of incurring debts against such fund in excess of the revenue provided for such *105 funds for that year, for notwithstanding the agreement that Jones Sons would furnish such supplies as were required and at such times as needed, yet such agreement created no obligation to pay for any supplies until they were purchased and furnished, and therefore created no debt against such fund until supplies were actually furnished. If no supplies had been required and none furnished, Jones Sons would have had no claim against the board of commissioners, and the board of commissioners would have incurred no obligation to pay for any supplies. Hence the agreement made between the parties in July had no further effect than that Jones Sons would furnish such supplies as were required, but would not furnish any supplies if none were required, and, as none were required and none furnished, and therefore no debt created until after the revenue in the poor fund had been exhausted, it becomes a clear case of incurring indebtedness in excess of the revenue provided for a given purpose during a given year, and the decisive question is whether the board of county commissioners could legally incur such debt.
"This question is answered in the negative by both the Constitution and statutes."
We adhere to the ruling in the foregoing case of Mayer v. Jones Sons, which is controlling here, but clarify the distinction between that ruling and former decisions of ours, particularly Buxton Skinner v. Board of Commissioners, Craig County,
Obviously in such cases, from the viewpoint of compliance with the Constitution (assuming that the expenditure contemplated in the contract is within the appropriation), the question is whether the contract obligation becomes a "debt" before the funds are exhausted. Where the contract names no specific sum, nor even any maximum sum, but leaves the amount thereof to be determined on a piece-work basis, as in the present case, it is impossible to determine in thet first place whether it is within the amount provided by the appropriation, and, in the second place, it cannot become a debt until the amount thereof can be made certain. The *106 amount cannot be made certain until performance, and if performance is postponed until after exhaustion of the fund, the debt thereby and then created is a debt in excess of the appropriation, — not so much because the performance took place after the fund was exhausted, but (and this is the real reason) because it was impossible, before the fund was exhausted, to earmark any specific amount in said fund for payment for performance under the contract, regardless of the time of that performance. No contract can be said to be within the appropriation when the amount to be paid under said contract is absolutely uncertain, and does not become certain by performance until after the appropriation is gone.
Plaintiffs next contend that this case comes within the rule announced in Smartt, Sheriff, v. Board of County Com'rs of Craig County,
He who deals with a municipality does so with knowledge of its and its agents' powers, and if in contracting with a municipality one goes beyond the limitations imposed by the Constitution, he does so at his own peril. City of Enid v. Warner-Quinlan Asphalt Co.,
The judgment is affirmed.
McNEILL, C. J., OSBORN, V. C. J., and BAYLESS and CORN, JJ., concur.