Board of Com'rs of Seminole County v. Barker , 119 Okla. 206 ( 1926 )

The sole question presented for determination by this proceeding is whether the petition of plaintiff stated facts sufficient to constitute a cause of action against the board of county commissioners. It is clearly evident in this case that unless a liability existed against Seminole county, by reason of the injury sustained by plaintiff's wife through defective construction of the bridge in question by Seminole county, there is no authority in law to support the contention that the board of county commissioners was authorized and empowered to enter into the contract here involved in settlement and compromise of said claim for injury.

It is well settled by decisions of this court that counties and townships within this state are merely quasi municipal corporations serving as agencies of the state, and are clearly distinguishable in their powers and liabilities from purely municipal corporations, such as cities. The reason for the distinction is thus stated in Dillon on Municipal Corporations (5th Ed.) vol 1, sec. 37:

"They are involuntary political or civil divisions of the state, created by general laws to aid in the administration of government. * * * They are purely auxiliaries of the state; and to the general statutes of the state they owe their creation, and the statutes confer upon them all the powers they possess, prescribe all the duties they owe, and impose all the liabilities to which they are subject."

That these quasi municipal corporations are not liable for the negligent construction of bridges or highways has been determined by this court, and is no longer an open question. James v. Trustees of Wellston Township, 18 Okla. 56,90 P. 100; Howard v. Rose Township, 37 Okla. 153, 131 P. 683; Welker v. Annett et al., Board of County Commissioners of Pawnee County, 44 Okla. 520, 145 P. 411.

There being no primary liability against the county for the negligent construction of the bridge in question, it must follow necessarily and logically that no part of the funds of the county could have been set apart by the excise board for the purpose of paying such a claim. Under such circumstances the commissioners were wholly without authority to enter into any contract by which it was attempted to fix an indebtedness upon the county for such an illegal claim. Comp. Stat. 1921, section 8638, provides:

"It shall be unlawful for the board of county commissioners, the city council, or the commissioners of any city, the trustees of any town, board of education, township board, school district board, or any member or members of the aforesaid commissioners, or of any of the above named boards, to make any contract for, incur, acknowledge, approve, allow, or authorize any indebtedness against their respective municipality, or authorize it to be done by others, in excess of the estimate made and approved by the excise board for such purpose for such current fiscal year, or in excess of the specific amount authorized for such purpose by a bond issue. Any such indebtedness, contracts incurred, acknowledged, approved, allowed, or authorized, in excess of the estimate made and approved for such purposes for such current fiscal year or in excess of the specific amount authorized for such purpose by a bond issue, shall not be a charge against the municipality whose officer or officers contracted, incurred, acknowledged, approved, allowed or authorized or attested the evidence of said indebtedness, but may be collected by civil action from any official contracting, incurring, acknowledging, approving, or authorizing, or attesting such indebtedness, or from his bondsmen."

For the reason above stated, and upon the authorities above cited and quoted from, the order and judgment of the trial court here involved are vacated, and the cause reversed and remanded, with directions to the trial court to enter an order sustaining the special demurrer of the defendant to the petition of plaintiff and dismissing the action.

By the Court: It is so ordered.