Bice v. Foshee , 19 Ala. App. 421 ( 1923 )

Some of the dipping vats in Chilton county provided for by acts of the Legislature, approved September 2, 1915 (Acts 1915, p. 341), being in danger of destruction by dynamite in the hands of unknown parties, the appellee, under the direction of the sheriff of the county guarded one of such vats for a certain period of time. After the services had been rendered, appellee filed his claim for compensation with the commissioners' court. The amount of such claim being agreed upon as reasonable for the services so rendered, the commissioners drew a warrant for the amount in favor of appellee, directed to the county treasurer. All of the foregoing was regular on its face. The treasurer of the county declined to pay the warrant upon the ground that the warrant was issued in a case not allowed by law. The trial court, on a summary motion, rendered judgment for appellee, and the treasurer appeals. There are no disputed facts.

A county may be liable on an implied contract within its contractual powers. And ratification of an unauthorized — if legally permissible — contract may be implied. This rule is laid down in 11 Cyc. 478D, and approved in Montgomery Co. v. Pruett, 175 Ala. 391, 57 So. 823, in which last case is cited Naftel v. County of Montgomery, 127 Ala. 563, 29 So. 29; Scarbrough v. Watson, 140 Ala. 351, 37 So. 281.

It would seem, therefore, that the only question of real moment in this case is whether the power to "maintain" dipping vats as contained in section 1 of the act of the Legislature, approved September 2, 1915 (Acts 1915, p. 341), is broad enough to authorize the county board of commissioners to contract to pay guards, for the purpose of protecting dipping vats, which the county was charged with maintaining. Under section 1 of the act, supra, the board is —

"authorized and empowered to make appropriations for the purpose of constructing and maintaining dipping vats to be used," etc.

Where boards of revenue and like bodies exercise legislative jurisdiction, and such action is within the express or implied terms of the act granting the power to them, and there is an absence of "fraud, corruption, or unfair dealing," their acts will not be controlled by any judicial tribunal. Henry, Treasurer, v. Rogers, ante, p. 376, 97 So. 427.

Maintain means to bear the expenses of, to support, keep up. Judson v. Blanchard, 4 Conn. 566; Rhodes v. Mummery,48 Ind. 216. One of the definitions given in Webster's International Dictionary is: "Not to suffer to cease or fail." Under a statute vesting boards of revenue with general supervision of roads and bridges, our Supreme Court held that the board was authorized to purchase and maintain an automobile for use in maintaining and inspecting the roads and bridges of the county. Ensley Motor Co. v. O'Rear, 196 Ala. 481, 71 So. 704. This court has held that under a statute giving to the board of revenue general superintendence of roads and bridges with power to construct, maintain, and improve roads, bridges, etc., the board had authority to appropriate money out of the road fund to pay certain expenses incurred by the board in determining the best character of road and the best material to be used. Henry, etc., v. Rogers (Ala.App.) 97 So. 427.¹ Under a statute authorizing the board to provide and equip a public morgue, it was held that the board was authorized to employ a morgue keeper. Manley v. Scott, 108 Minn. 142, 121 N.W. 628, 29 L.R.A. (N.S.) 652. Under a statute authorizing the maintenance of county officers, the appointment of a custodian was held to be valid. Conway v. New York, 6 Daly (N.Y.) 515. Under similar statutes contracts for the employment of the following have been upheld: A janitor for a courthouse (Hetsch v. Com., 86 Ky. 327, 5 S.W. 781), guards for a county jail (Mitchell v. Leavenworth Co., 18 Kan. 188).

County boards, in the absence of legal authority to do so, cannot employ agencies to exercise powers beyond the powers granted them by law. Neither is it within the power of a county board to contract with a person to perform acts which are part of the official duties imposed by law on other officers of the county or state. Where employment for particular services is expressly and fully covered by statute, the board has no power to exceed such authority.

"With these limitations county boards have implied power to employ such agents and servants as may be required for county purposes and which are not otherwise provided by statute or the state Constitution." 15 C. J. 546, par. 238.

The county board is charged, in the instant case, with maintaining certain dipping vats. If to maintain these a guard was; in its opinion, necessary to protect such vats from depredation, the employment of such guard was within the implied powers of the board and being so the services rendered at the request of the sheriff of the county could be ratified by the board.

There is no error in the record, and the judgment of the circuit court is affirmed.

Affirmed.

¹ Ante, p. 376.