McPhail v. Board of Commissioners

As The Code, section 2034, originally stood, when (334) bridges were beyond the reasonable capacity of the road overseer and his hands, the board of township supervisors were empowered to contract for the building, keeping and repairing of the same, with the concurrence of the board of county commissioners. Even under that statute any contract made by the township supervisors would not have been valid till reported to and concurred in by the county commissioners. The township supervisors here pursued no improper plan in advertising for the lowest bid, but they erred in supposing that they were bound to accept it, no matter how unreasonable, or that they could accept it at all without the concurrence of the county commissioners, to whom they should have reported it for approval. But even as thus guarded, the Legislature of 1887 (chapter 370) thought there was room for abuse, and struck out even this qualified authority in the township supervisors, and provided that the contracts in all such cases shall be made by the county commissioners. The determination whether a bridge or its repair is needed, and the sum to be paid, is thus confined to their judgment, and can not be delegated. When they have decided that a bridge should be built or repaired, they can appoint the township supervisors or others agents to have the work done at a price fixed by themselves — that would be a mere ministerial duty. And to enlighten themselves, they can refer the matter beforehand to the township supervisors (or possibly others) to report the facts and the lowest price at which (335) the work can be done, subject, of course, to their own approval. The order passed by the commissioners. "The repairs of Evans Creek bridge are referred to R. J. Harrison and Alexander McNeill," meant no more than that and was valid. If it had meant to confer upon the referees the power to determine either the question whether the repairs should be made or the discretion to fix the amount to be paid, without being subject to approval by the county commissioners, the order would have been invalid; besides, the words of the order can not, without straining, be construed to carry such powers.

As the repairs have been actually made and accepted, the county is bound on a quantum meruit for the reasonable and just value of the work and labor done and material furnished, but not for the attempted contract of Harrison and McNeill, which, under the law, they had and could have no authority to make so as to bind the county.

The question raised as to the legality of the term of the court at which the action was tried is settled by the decision in McNeill v. McDuffie,post, 336.

ERROR.

(336)