154 Ky. 544 | Ky. Ct. App. | 1913
Opinion of the Court by
Reversing.
After due advertisement, the fiscal court of Boyd County at its April term, 1912, opened bids for the working and keeping in repair of the roads for two years, under the provisions of section 4315 of the Kentucky
On the second day of April, 1912, the following order was entered:
“Bids opened for the maintenance of roads of Boyd County and contract awarded to John O’Kelly, his bid being the lowest, $21.85 per mile.”
At the same term, and on' the fourth day of April, the following order was entered.
“Ordered that F. C. Malin, County Attorney, be and he is hereby appointed a commissioner to make contract and take bond of John O’Kelly in the matter of maintaining roads of Boyd County.”
Thereafter, and on the eighth day of April, Malin as commissioner attempted to enter into a contract with appellant for and on behalf of the Boyd County Fiscal Court under his supposed authority, and at the same time underook to accept from appellant, O’Kelly, a bond for the faithful performance of his contract as provided by section 4315. These papers were subsequently filed with the county court clerk, but neither of them were ever reported to the fiscal court of Boyd County, or approved or ratified by any order of that court. O’Kelly assuming that he had a valid contract with the county proceeded at once to make sub-contracts, to buy machinery and to have the work done.
In August, 1912, appellees, residents and taxpayers of Boyd County, conceiving the paper so signed by O’Kelly and Malin to be void and of no binding'effect upon the county, instituted this action against O’Kelly, the county judge, members of the fiscal court, and other county officers, seeking to enjoin them from proceeding under the contract, or paying to O’Kelly or any of his sub-contractors any money thereunder.
Pending the action, and on the second day of September, 1912, the Boyd County Fiscal Court entered an order reciting the fact that it had in open court on the second day of April, 1912, opened the various bids and considered the same, and found O’Kelly to be the lowest and best bidder, and that 0’Kelly’s bid was a bid of $21.85 per mile per year for each of the years of 1912 and 1913, and that same had been accepted and approved by the court, and that the same term it had appointed Malin its commissioner to draft and enter into a written contract with 0 ’Kelly on behalf of the county in accordance with the specifications already on file, and that it
On the 6th day of September, the said fiscal court entered the following order.
“This day came C. L. Williams, Commissioner, acting in behalf of Boyd County to make corrected contract with-John O’Kelly for maintenance and repair of the graded dirt roads in Boyd County, Kentucky, and produce said corrected contract, duly signed and executed by C. L. Williams, Commissioner aforesaid, and said John O’Kelly, which contract was read in open court and upon motion duly seconded and carried, it is ordered that said corrected contract be and the same is hereby accepted and approved and ordered filed, and it is further ordered that the bond offered by said John O’Kelly, duly executed by himself as principal and the Maryland Casualty Co. as surety, for the faithful performance of said contract this day executed, be and the same is hereby accepted and approved and ordered filed.”
Upon the filing of the original petition the clerk issued a temporary restraining order which upon final hearing was made perpetual by the circuit court, and from that judgment this appeal is prosecuted.
The record presents two questions:
(1) Did the original writing signed by Malin, the commissioner acting for the county, and his approval of the bond executed by O’Kelly, make a binding contract between O’Kelly and the county?
(2) Did the subsequent action of the fiscal court have the effect to cure any defects in the original contract or in the manner of its execution, and thereby ratify the acts of its agent attempted to be performed for it,
(1) The fiscal court has no power to delegate to an agent the authority to do anything which involves the exercise of a discretion which by law is confided to it, and if the orders, of the court directing the commissioner to-
But even if this were not so, under the express terms, of section 4315 of the Kentucky Statutes, it is the duty of the fiscal court itself to approve the bond of the contractor, and it has no authority to delegate that right to another. The only way in which the fiscal court of a county can act is through its orders duly recorded in the' manner required by law; and even if the orders of the court had been drawn so as to leave no discretion in the-' commissioner as to the character of the contract to be entered into with O’Kelly, still the fiscal court could not-have delegated to him the authority to approve the bond.. The acceptance of the bond necessarily involved the exercise of a discretion; but if it did not that power rested under the statute solely with the fiscal court, and its ap-. proval could be made in no event by any other person or. body, or in any manner except by an order duly entered on its record.
(2) But it is clear from the record that the fiscal’ court and O’Kelly were in the first place each acting in-good faith, and that they each thought they had entered into a binding obligation; and the question remains, under these conditions had the fiscal court the power by subsequent orders to correct its oversights and errors previously made in its effort to enter into this contract, so as to ratify its original action and that of its commissioner, and make the contract relate back to the original-transaction and be binding,
The orders of September, 1912, of the fiscal court evidence an unmistakable desire upon its part to take .such
“While the order of August 14, 1893, does not in terms approve the action of the Menifee commissioners, the action of the Menifee County Court in referring to the original appointment of the commissioners in setting-forth the fact that these commissioners had come to terms with the Montgomery County commissioners, in setting out the territory in Menifee County, and in levying a tax thereon and appointing a collector to collect the same, cannot be construed in any other light than as an act of ratification.”
In that case the contract was held to have been ratified by subsequent orders and conduct although there was no ratification in terms, whereas in this ease there is express subsequent ratification. The contract' attempted to be made in the beginning was one which was within the power of the fiscal court to make, and the fact that its agent did not take the required steps to make it a binding- obligation, does not” deprive the governing-body of the county of the power to thereafter validate and ratify that contract so as to make it binding from
For the reason indicated the judgment is reversed, with directions to enter a judgment in conformity herewith.