72 Ark. 330 | Ark. | 1904
(after stating the facts). This is an appeal from a judgment rendered against a county for services rendered by plaintiffs in the construction of a bridge. It is said that no recovery can be had in this case because no appropriation had been made for the building of this bridge by the levying court, and that for this reason the county court had no authority to make a contract for its construction. But the evidence does not show whether such appropriation had been made or not, and, in the absence of any proof on that point, we should not presume that the county judge authorized the construction of the bridge in violation of the statute.
But we think that the circuit court erred in giving the first instruction requested by the plaintiffs, for, under the law as declared by that institution, any one who constructed a bridge on the public highway could compel the county to pay him the value thereof, whether he had authority to construct it or not, even though the county should refuse to accept or use such bridge. This would leave to any one the right to determine the question whether a bridge was needed on a public highway, and then to construct it at the expense of the county, without consulting the county officials, which is clearly not the law.
But when an appropriation has been made by the levying court for the building of a bridge, and the county judge lets the contract, and has the bridge built, we do not think that the county can take charge of the bridge, and allow the public to use it as a public bridge, and thus get the benefit of the work and labor of the contractor, and still defeat the claim for compensation on the ground that the contract to construct the bridge was made by order of the county judge, instead of by the county court. To quote the language of the supreme court of the United States: “The obligation to do justice rests on all persons, natural and artificial, and if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation.” Chapman v. County of Douglas, 107 U. S. 356; Nevada County v. Hicks, 38 Ark. 557. For this reason it seems that if, by mistake of law, a bridge is built upon a public highway under a contract, which does not bind the county, and payment is refused on that ground, the county, if it does not intend to accept and pay for the work, should, as a matter of justice, permit the party constructing the bridge toi remove it, and get what benefit may be had from the materials he has furnished, when the removal can be effected without injury to the public. In other words, it should not retain the materials, and use the structure, and refuse to pay the value thereof, when that result can reasonably be avoided. But in this case the county court refused to accept the bridge, and there is nothing in the evidence to show that the county has taken charge of the bridge, or received any benefit from the work and labor of the plaintiffs, so that the question of whether the county would have become liable if it had taken charge of or permitted this bridge to be used by the public is not before us on this appeal.
For the reason stated, the judgment is reversed, and the cause remanded for a new trial.
