67 P. 630 | Kan. | 1902
The opinion of the court was delivered by
It is provided in article 12, chapter 110, of the General Statutes of 1901 ( §§ 7822-7829), that the township trustee, clerk and treasurer of each municipal township in the state shall constitute a board of commissioners of highways in their respective townships, and to this board is committed the care of
It seems in this case that the township trustee', when he bought the lumber, supposed that there were available means sufficient to pay for the same, or at least that he so represented to the agent of the plaintiff.
It is a most wise and salutary rule which prohibits municipal corporations from being chargeable upon contracts made in excess of their powers to make, and to put all parties dealing with them upon an absolute knowledge of that power, and we do not wish to be understood as questioning that rule in the least; but there is a wide difference between the lack of power to do a thing and the doing of that thing in an unauthorized manner or at an unauthorized'time. Upon this subject, we quote from Dillon’s Municipal Corporations, section 936:
“When an act in its external aspect is within the general powers of the corporation, and is only unauthorized because it is done with a secret, unauthorized intent, the defense of ultra vires will not prevail against a stranger who dealt with it without notice of such intent.”
In support of this doctrine, the author cites with approval the case of Moore v. Mayor, 73 N. Y. 238, 29 Am. Rep. 134, where Mr. Justice Allen clearly draws the distinction between a total want of power and mere
Now, in this case it was beyond question within the power of the township board to build this bridge : the board was the agency created by statute for that purpose, and to which the inhabitants of the township looked for protection from defective highways by requiring it to make the same safe. In pursuance of this power, the board made the contract it did, and, relying upon it, the plaintiff parted with its property, for the benefit of the township, and it is very clear to us that the township cannot now set up its own irregularity, if irregularity it was, in purchasing the lumber before it had available means to pay for it as a complete defense to its liability therefor. Such a defense does not recommend itself as being in accordance with good law or good morals. In coming to this conclusion, we do not overlook the case of Walnut Township v. Heth, 9 Kan. App. 498, 59 Pac. 289, which holds the contrary doctrine, but the reasoning in that case does not meet with our approval.
In considering this case, we have viewed it as though the trustee had been authorized by the formal action of the board to purchase the lumber before the same was purchased, for its subsequent action in ratifying such purchase and directing the further progress of the work upon the bridge was equivalent to an order for the same in the first place. "What a corporation may legally do, it may legally ratify after it is done.
We conclude that the court below was in error in its construction of the law, and must therefore reverse its judgment and remand the case for further proceedings in accordance with the views herein expressed.