103 P.2d 401 | Wyo. | 1940
This is an action brought by the George W. Condon Company, a Corporation, against the Board of County Commissioners of Natrona County in this state, to recover upon a verbal contract for the construction of a road or highway in Natrona County. It was alleged in the petition that the road to be built was near the Alcova Diversion Dam near the town of Alcova; that it was agreed that the defendant would pay plaintiff the reasonable rental value of the equipment and labor necessarily used in said construction work, and that payment would be made when the work would be completed; that plaintiff completed the work according to the contract and that the reasonable value of the work is the sum of $3708.91; that an itemized statement was duly filed with the Board of County Commissioners of the county and that the Board has neglected and refused to pay it. After issues joined the court found in favor of the defendant, from which the plaintiff has appealed to this court.
It appears from the testimony in this case that about February 20, 1937, Harold H. Hudkins, superintendent for plaintiff, had a meeting with E.J. Reid, D.C. McClellan, and Henry C. Posey, being all the members of the Board of Commissioners of Natrona County, in which the road in question was discussed and a proposition was made by Mr. Hudkins to the Board to construct the road in question for the county at cost. All the members of the Board went to look over the ground where the road was intended to be constructed. They *44 were all apparently in favor of it, but no final action was taken at that time. A few days thereafter, namely, on February 27, 1937, Mr. Hudkins, on behalf of the George W. Condon Company, addressed a letter to the Board of Commissioners of Natrona County, stating in writing that the Condon Company would construct the contemplated road at cost price, mentioning the fact that the site of the road had been changed to some extent by the United States engineers but that the change was for the better. The cost price was estimated at $2068. A few days subsequently Mr. Hudkins met at least two of the members of the Board of Commissioners, namely, Mr. Reid and Mr. Posey, in the office of Mr. Bashor, representative of the United States Reclamation Service, and the members of the Board present, or at least Mr. Reid, the chairman of the Board, told Mr. Hudkins to go ahead with the work. The company did so, and constructed about 2000 feet of road. It was contemplated that the road should go over the Alcova Dam, but about 200 feet of the road was not fully completed by the Condon Company; a considerable amount of blasting of rock was required, which was done, apparently, by the main contractor constructing the Alcova Dam. Mr. Hudkins testified that the Condon Company completed all but a little of the road, which was contemplated under the verbal contract heretofore mentioned. Whether the road was fully completed or not is not clear. Some of the evidence indicates that Callahan Company, the main contractor for the construction of the Alcova Dam, fully completed it. The county furnished, it seems, a culvert in connection with the construction of the road. The Board also employed one H.H. Price to check the amount of time spent by men and equipment, so as to determine the cost price, and his bill was paid by the county. He was regularly employed as an inspector of highway work. He kept time of the equipment and labor in connection with the *45 work on the road in question for the period of about ten days, and, on instruction from Mr. Posey, quit when the blasting of the rock commenced. Mr. Reid and Mr. Posey went to inspect the work on the road several times during the construction. There is a dispute in the testimony as to whether or not the Condon Company constructed the road for its own benefit. Most of the testimony indicates that it used the road, but constructed it of a greater width than would have been necessary for its own work. As finally constructed, the road was approximately thirty-five feet wide, in fairly good condition, and was used to a considerable extent by various people, particularly tourists who used it for the purpose of inspecting the Alcova Dam Project. The Condon Company presented its bill to the County for the sum of $3708.91, representing the cost price of the work. The bill was never acted upon. Mr. Posey, who was in charge of highways for and on behalf of the Board of Commissioners, stated at a meeting of the Board that he had authorized the expenditure on the road of $2068. Mr. McClellan had previously stated that he would not be interested in the road, if it cost more than that. It is agreed that the Board as such never entered into a contract with the plaintiff in this case for the construction of the road.
The plaintiff company was not a mere volunteer. It was authorized to do the work by at least two, if not all, the members of the Board of Commissioners. However, the authorities are agreed that the individual members of the board cannot, as individuals, bind the county. The board must act as a body in order to validly act for and obligate the county by an express contract. Grand Island etc. R. Co. v. Baker, Treasurer,
Ratification may be express or implied. 15 C.J. 554; 44 C.J. 122. It relates back to and is in effect the equivalent of previous authorization. 44 C.J. 122. It has been stated that "ratification of an unwarranted exercise of authority by an agent of a municipal body requires, if strictly applied, that the officer vested with the power approve the action of the subordinate, but this may be either express or implied from the acts, words or conduct of the body empowered to act which reasonably shows the intention." 47 Harvard Law Review 1165; Green v. Cape May,
We might mention, incidentally, that section 95-201, *48
Rev. St. 1931, provides that if the state or a subdivision thereof enters into a contract for a public improvement costing more than $500, the contractor must furnish a bond for the faithful performance of the contract and that he will pay all materialmen and laborers in connection therewith. Similar statutes have been held to be mandatory, some of the cases holding that no recovery may be had on the contract, although a recovery on a quantum meruit or quantum valebat is not forbidden. 44 C.J. 351; McQuillan, supra, Sec. 1282; Burt v. Road Improvement District,
There are numerous decisions on the point as to whether or not recovery can be had upon an implied contract of a municipality. A note collecting many of them may be found in 84 A.L.R. 936, et seq., continued in 110 A.L.R. 153 et seq. In Kentucky, Ohio, and Missouri, such contracts, seemingly, are not recognized. Note, 84 A.L.R. 949 to 954; Carter v. Reynolds County,
"The rule is well settled in most jurisdictions that a municipality or other political subdivision may become obligated upon implied contract to pay the reasonable *49 value of benefits accepted or appropriated by it as to which it has the general power to contract."
In note, 84 A.L.R. 973, it is stated as follows:
"It is a general rule that, even though there was no express contract, nor any formal contract, a municipality or other governmental body is liable upon an implied contract for any property, or benefits received or appropriated by it, under such circumstances as to lead to the inference that payment was intended by the parties, or such as for, in justice and equity, compensation should be made for benefits voluntarily accepted, provided such property or benefits would be a proper subject of an express contract and within the contractual powers of such municipal corporation."
In McQuillan, supra, Sec. 1364, Vol. 3, p. 975, the author states:
"Thus if the municipality has power to contract therefor by express contract, and the contract is not against public policy, and there are no statutory or charter provisions limiting the mode of execution of a like express contract, it will be liable upon an implied contract where it has received benefits, either in the entire absence of any contract or where the express contract is invalid because of some irregularity."
See also Dillon, Municipal Corporations, (5th ed.) Sec. 793.
In 7 R.C.L. 946, it is stated:
"It is a general principle of almost universal application that whenever a county has power originally to do a particular thing, it also has the power to ratify and make valid an attempted effort to do such thing, although the same may have been done defectively, informally, and even fraudulently, in the first instance. Upon the strength of this principle municipal corporations have been estopped from denying their liability to pay for benefits received, in some cases where there was no contract at all, and even in cases where there was an absence of power to make the contract. Where a county receives and retains substantial benefits under *50 a contract which it was authorized to make, but which was void because irregularly executed, it is liable in an action brought to recover the reasonable value of the benefits received. Likewise a county employing one to do certain work, and accepting it, going into possession, and using it after it is finished, is liable for the reasonable value of the work, though not performed strictly according to the contract."
Similar in effect is 14 Am. Jur. 212; 15 C.J. 559. The decisions are not altogether harmonious, as pointed out in an article in 47 Harvard Law Review, 1143 et seq. Part of the disharmony is due to the fact that some courts have held certain statutory provisions to be mandatory, while other courts have held them to be directory. Thus, we held in Tobin v. Town Council of Sundance,
"And the commissioners are hereby authorized to contract for such necessary improvements upon the public roads and highways in the same manner as provided in the case of bridges, provided that, when any bridge is to be built, or other improvement made as provided in this section, the county commissioners shall award such contract in such manner as to them shall appear just and equitable for the county."
The section was first enacted in 1869, except that competitive bids were required if the estimated cost *51 was over $50.00. Section 17, c. 26, Laws 1869. We find no other provision in the laws of that time concerning the construction or repair of roads by the county, other than as mentioned above. Apparently the state at that time depended to some extent on toll-roads. Chapter 8, Laws of 1869. By Chapter 89, Session Laws of 1882, road overseers were given control of the construction and repair of roads and bridges in the county, and their compensation was fixed. A more comprehensive law was enacted in 1886. The road supervisor was required to open and keep in repair all public roads. A special road tax was levied, with the privilege of working it out under the supervision of the road supervisor. The latter was authorized to purchase plows, scrapers and other implements to assist him in the performance of his duties. Section 17 of the Session Laws of 1869 was re-enacted. Chapter 99, Sec. 16 et seq., Session Laws 1886. With some slight changes, these laws were kept in force and effect until most of them, in so far as relating to the road supervisor, were repealed by Chapter 17, Session Laws of 1931. At all times the provisions of section 17, Ch. 26 of the Laws of 1869 were re-enacted or kept in force, except that in 1895 the law was re-enacted as it reads at the present time. The statute, in so far as it relates to road-improvements other than bridges, is not mandatory in form. The commissioners are authorized to enter into contracts for such improvements after competitive bidding. Still, that is the only provision specifically enabling them to enter into such contracts, and since the authority of county commissioners is fixed and limited by statute, it may be a fair question as to whether or not they are limited in making such contracts to the specific manner pointed out, and that, accordingly, such contracts should be governed by the rule laid down in the Tobin case. The point has not *52 been argued herein, and it is not necessary to decide it. But we thought best to make reference thereto.
It may be noted that the rule of liability on an implied contract is based on benefits received and retained. In each of the cases cited to us by counsel for the appellant, the decision is based on that ground. If no benefits have been received and retained, no liability arises on an implied contract. Chicago v. Beck L. Co.,
The board never made a formal order to establish the road in question as a county road. The legislature of this state gave the county commissioners until January 1st, 1924, to make a record of all highways in the county, and provided that "no other roads shall be highways unless and until lawfully established as such *54
by official authority." That indicates a policy that roads should be shown on the records. Other sections of the statute provide for a record or at least a description, filed in the office of the county clerk, of public roads. Sections 52-214, 216, 226. It has been held in a number of cases that a statute which provides that the county clerk should keep a record of the proceedings of the board of commissioners is directory, at least in so far that a contract made by the board may be proved by parol. 15 C.J. 468; State ex rel. v. Bank,
"Common honesty requires that a municipality or other governmental agency should not be allowed, any more than a private individual, wholly to repudiate the obligation of which it has voluntarily appropriated the benefits. And in such cases if the municipality does not restore the property which it has received, an implied obligation to make compensatory payment for it arises. * * * This principle, however, has no application in the present case for several reasons: First, the roads were built within the township itself, and can scarcely be said to constitute property received by the county; second, the doctrine does not extend to benefits which by their very nature cannot be surrendered and the retention of which is therefore not voluntary, as, for example, paved highways or improvements upon buildings."
See also State ex rel. v. McCabe,
Section 52-206, Rev. St. 1931, provides that "all county roads shall be not less than sixty nor more than one hundred feet in width, unless the board of county commissioners, upon the prayer of the petitioners for the same, determine that a county road be established with a less width." It has been held that a similar statute *56
has application to such roads as are laid out by formal act of public authorities and not those created by dedication. Black v. Southern Pacific Co. (Cal.App.)
The judgment of the trial court must be affirmed, and it is so ordered.
Affirmed.
RINER, Ch. J., and KIMBALL, J., concur.