Cook & Wakeley v. Deerfield Township , 1870 Pa. LEXIS 386 ( 1870 )

The opinion of the court was delivered,

by Agnew, J.

— The point on which the plaintiff asked the court below to charge the jury introduced unnecessarily a question as to the right of the supervisors to change the route of the road on which the work was done, and was, on this account, followed by an adverse answer. There can be no doubt of the entire want of authority in the supervisors of a township to change the route of a public road, without the sanction of the Court of Quarter Sessions given in a proper proceeding to effect the change: Holden v. Cole, 1 Barr 303; Calder v. Chapman, 8 Id. 522; McMurtrie v. Stewart, 6 Harris 322; Clark v. Commonwealth, 9 Casey 112.

But the judge concluded his charge by instructing the jury that on all the facts in evidence, they should return a verdict for the defendant. It does not appear, however, in the evidence, that the plaintiffs were informed that the change in that part of the road was made without authority. Eor aught that appears in the evidence, it is fair to presume that the plaintiffs, as contractors for the repair of the road, acted under the belief that this part of the route was changed in conformity to law. This being so, the loss should fall on the township in the first instance, and not on the contractors, the township having a remedy over against the supervisors to charge them in their settlement before the auditors, with the illegal expenditure. The reasons for this are obvious. The supervisors have a general authority to repair the public roads of the township and to bind the township for the expense. Their power to bind it is like that of a general agent, whose principal must suffer the loss, if the agent exceeds his power in a particular apparently within his authority. Being the authorized agents of the township in the general repair of public roads, it is manifest that those who are employed to work on the roads are not bound to make inquiry beforehand, as to the rightful creation of the road on which the supervisor directs them to work. It would be intolerable injustice if those who take contracts from public officers having competent authority to make them, should be compelled to lose the labor and money expended by them, if it should turn out that the officer had misdirected them where to perform the contract.

It was on this principle of general authority on the part of county commissioners to represent the county, that it was held in Dauphin County v. Bridenhart, 4 Harris 458, that the county was bound for the rent of a house leased by the commissioners for the use of the sheriff; though there was no authority to furnish him with a dwelling. The commissioners therein exceeded their powers, but having a general power to act in behalf of the county, the owner of the house was not bound to inquire into their authority in the particular instance. It is often impossible for individuals to know, or to be able to determine, whether the particular matter lies within the scope of a general agent’s power. There are cases where the county is sometimes bound even where the agent has no general authority. Such are the following: Commissioners v. Hall, 7 Watts 290, where the county was held liable for the expense of a jury kept together in a capital case; Allegheny County v. Watts, 3 Barr 462, where the county had to pay the fees of a physician for making a post mortem examination at the instance of the coroner; McCalmont v. Allegheny County, 5 Casey 417, where the county was held liable to pay the expense of an office to keep the records, &c., of the Supreme Court. There being in this case no evidence that Cook & Wakeley, the contractors, made themselves a party to the illegal' act of the supervisors, or were notified to desist on that account, the court erred in directing a peremptory verdict against the plaintiffs.

Judgment reversed, and a venire facias de novo awarded.