6 Colo. App. 269 | Colo. Ct. App. | 1895
delivered the opinion of the court.
The affairs of Kiowa county were directed in the year 1891 by three county commissioners, named Sherman, Rusk and Beal. While these commissioners were in office, Liggett, the plaintiff in error, made a proposition to the board to act as the purchasing agent and printer for the county for two
At that regular meeting, this board, which was then in office, did what has been stated. What is disclosed by the record would appear to constitute an agreement between the parties, unless, as has been suggested, there be some defense growing out of the acceptance of the bond or the failure to execute a new one, which is not disclosed. For some reason which does not appear, Beal and Rusk went out of office on the second Tuesday in January, 1892, and were succeeded by Allen and Biddle, who went into office on the second Tuesday of that month. Sherman remained in. How it happened that two commissioners went out we do not know. Under the general scheme of the statute respecting boards of county commissioners, one officer goes out every' three years. However this may be, on the 12th of January, Allen, Biddle and Sherman constituted the board. Sometime during that month, and probably the latter part of it, Miller, who was the publisher of a rival paper called the “ Leader,” offered to do the county’s work for the year o£ 1892 for two thirds of the fixed rate. This proposition was accepted. The contract .with the Chiving ton Chief, and Liggett, its proprietor, was abrogated, and the board proceeded to contract with Mr. Miller. It is not shown, but we presume, there was a change in the political complexion of the board. Why the Liggett contract was abrogated and the Miller contract made, the proceedings do not show. The board assumed they had a right to set aside the contract, and had full authority to enter into an agreement with Miller. All these facts were disclosed by the evidence which ivas received. The plaintiff Liggett then undertook to show his losses, and to make the requisite proof to establish them. He offered
This is the only practical proposition which is involved in this hearing, — the only one in reality to which much importance is attached, or to which much time is devoted in the briefs of counsel, — and is manifestly the theory on which the court excluded the testimony. If the court was right, the judgment must be affirmed. If his conception of the law in this particular was erroneous, it must be reversed. There are some authorities in Kansas and Indiana which substantially hold that a board may not contract with reference to matters which must be completed or done after the expiration of the term of the officers who enter into the engagement. The Indiana authorities are not in harmony on this question, and they seem to draw a distinction between contracts which are to be executed within what is termed a reasonable time and those which are to run for so long a period that the courts would regard them as prejudicial to the public’s interest, and therefore against public policy and void. With this distinction, a case could easily be conceived which on principle should be adjudged invalid within the rule laid down by one of the Indiana cases. Board of Commissioners
"We do not intend to enter into a discussion of this distinction, because under none of the cases would this contract be adjudged void as against public policy because of the time it was to run. It was simply for the year 1892, and if the board could contract at all with reference to the matter or for that period, the contract would be reasonable, and could, not be, as a matter of law, adjudged void because prejudicial to the public interest. But for the going out of office of two of the members, the contract might possibly have been, adopted by the board as reorganized on the second Tuesday in January. It is useless to speculate about it, because the board was a new one, and it undertook to repudiate the agreement. It thus becomes a naked question of power, on the part of the old board to make this agreement with Liggett. The question of the power of the governing bodies of these quasi corporations has been made the subject of considerable discussion in the books. It is not a matter of argument, so far as concerns the general powers of the county board to make such a contract. Under our scheme, the commissioners are the governing body, and by statute they are clothed with full authority to make all contracts which are essential to the management of the county’s affairs. The status of counties as corporations has been the subject of considerable discussion, and while they are defined as quasi corporations, it is always conceded that as such they have, to the extent of the powers which are conferred upon them, full authority to act and to contract as may corporations generally. Stermer v. Board of Commissioners of La Plata County, 5 Colo. App. 379.
Where the officers or trustees of a quasi corporation are empowered to act with reference to any particular matter, it is generally conceded their contract will be valid and binding, even though some part of its performance may be .impossible until after the expiration of the term of the officers who may enter into the engagement. Wait v. Ray, 67 N Y. 36;
It does not seem to be possible to hold otherwise under the general rules of law fixing the liability of corporations for the acts of their duly authorized agents. When it is conceded that a county is a quasi corpox-ation, possessed of eer■tain statutory powers, and a suit is brought on a contract which is evidently withixi the scope of its power, the county may not.escape liability on the hypothesis that its performance could not be completed until after the terxn of the officers who entered into it. All corporations must act by agents. In one class of cases they are boards of directors, and in the other they are officers elected by the people or appointed by the proper authorities. In whatever way the agents may acquire title to their office, so long as-they are properly exercising their powers, the corpoi’ations which they represent must -be held bound by the obligations into which they lawfully entex’. The only exception to this general rule may possibly lie in the direction of the Indiana decisions, when, from the terms and the character of the convention, it can be judicially determined to be void because against public policy. Whether axxy other exception would arise if it should be pleaded and proven that the contract was collusively and fraudulently made by the retiring board, to the lmowledge of the contracting party who brought the suit, need not be decided. No such case is made by the record. Improper motives may not be imputed to the officers without proof of facts which warrant the inference. The purposes of the officers ai’e not matters for discussion without direct proof on the subject. McCormick v. City of Boston, 120 Mass. 499; Soon Hing v. Crowley, 113 U. S. 703; Oglesby v. Attrill, 105 U. S. 605.
The record does not px-etend to show the making of the agx-eement for the purpose of anticipating action by the new boai'd or to foi’eclose it on this subject. According to the judgment of the board as it was then constituted, an immediate necessity may have existed to make it. The contract
The contract was not void, and on sufficient proof of its execution and its breach, the plaintiff may recover the damages which he can establish. The court erred in holding otherwise, and the case must, be reversed and remanded for a new trial in conformity with this opinion.
Reversed.