Board of Commissioners of Pulaski County v. Shields

• Decision Date: 01 December 1891
• Docket Number: 14,830
• Citation: 29 N.E. 385,130 Ind. 6
• Parties: The Board of Commissioners of Pulaski County v. Shields
• Court: Indiana Supreme Court

29 N.E. 385

130 Ind. 6

The Board of Commissioners of Pulaski County v. Shields

No. 14,830

Supreme Court of Indiana

December 1, 1891

From the Cass Circuit Court.

Judgment affirmed.

J. C Nye, S. T. McConnell, D. B. McConnell and A. G. Jenkins, for appellant.

D. C Justice, N. L. Agnew and B. Borders, for appellee.

OPINION

McBride, J.

The Board of Commissioners of Pulaski county by written contract employed the appellee to superintend the county asylum and poor farm of that county for a term of five years from April 1, 1884.

The complaint alleges: "That the plaintiff on said first day of April, 1884, entered upon the discharge of his duties as such superintendent, and continued in discharge of his duties under said contract, and faithfully performed all the conditions upon his part until the 22d day of March, 1887, at which time the said county, acting by its Board of Commissioners, to wit: George H. Barnett, Clark R. Parcel and Charles Becker, without any cause and without right, excluded and dismissed the plaintiff from his said employment as such superintendent of said county asylum and poor farm, and have at all times since, without any cause or excuse, excluded and prevented the said plaintiff from said employment and the discharge of his duties thereof. * * * * That he has at all times been ready, willing and able to perform his part of said contract," etc.

The principal controversy in the case is as to the validity of the contract, the appellant insisting that it is "void." They base this contention upon the ground that the board of county commissioners has no power to make a contract employing a superintendent of the county asylum and poor farm for a term of five years; that such a contract is against public policy; that to uphold it would "put it in the power of one board of commissioners to completely tie the hands of its successors;" and that such a contract would operate as an abridgment of the "administrative, executive and legislative" power of the board to an extent which the law will not tolerate.

These questions are raised by the action of the circuit court in overruling a demurrer by the appellant to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

This court has had frequent occasion to consider the nature and extent of the powers possessed by boards of county commissioners.

Many of the cases are reviewed in the case of Platter v. Board, etc., 103 Ind. 360, 2 N.E. 544.

The court says, 369: "The law commits to the board of commissioners very extensive powers over the property, finances and institutions of the county." * * * It has "very broad powers over county property and institutions, and its discretion in the control and disposition of such institutions is seldom if ever interfered with by the courts. * * * There are numerous decisions in our own reports declaring that the board of commissioners constitutes a corporation, and that its rights, duties and liabilities are substantially the same as those of a municipal corporation."

In State, ex rel., v. Clark, 4 Ind. 315, it was said: "In legal contemplation, the board of commissioners is the county."

That boards of county commissioners, in common with municipal corporations and other corporations of like character, may make valid contracts for the employment of agents to aid in the administration of the affairs of such corporation, is beyond controversy. As is said by the court in City of Indianapolis v. Gas, etc., Co., 66 Ind. 396, "A municipal corporation, not having either body, limbs, feet or hands, but being merely a legal entity, can not execute its own acts, nor administer its own affairs. To do this it must employ persons, other corporations, or agencies of some kind, and to employ them and agree to pay them is to make a contract; and if it could not make such contracts, and was not bound thereby, it could not carry on the purposes or attain the objects for which it was established."

See, also, City of Logansport v. Dykeman, 116 Ind. 15, 17 N.E. 587; City of Valparaiso v. Gardner, 97 Ind. 1; Duncan v. Board, etc., 101 Ind. 403; Crow v. Board, etc., 118 Ind. 51, 20 N.E. 642; City of Vincennes v. Callender, 86 Ind. 484. In City of Indianapolis v. Gas, etc., Co., supra, the power of a city to make a valid contract for gas to light its streets and public buildings for the period of twenty years is affirmed, and in City of Valparaiso v. Gardner, supra, the court holds that a city may make a valid contract for a supply of water for a period of twenty years. See, also, Crowder v. Town of Sullivan, 128 Ind. 486, 28 N.E. 94.

Being charged by law with the performance of certain duties, even if no express authority was conferred to contract with and employ the necessary agencies to compass those ends, such power would be inferred.

Boards of county commissioners are not only authorized to provide an asylum for the poor of such county, but are by statute expressly authorized to employ a superintendent of such asylum.

Section 6090, R. S. 1881, provides as follows: "It shall be lawful for the board of county commissioners of any county of this State, whenever it may deem it advisable, to purchase a tract of land in the name of such county, and thereon to build, establish, and organize an asylum for the poor, and to employ some humane and responsible person, resident in such county, to take charge of the same, upon such terms and under such restrictions as the board shall consider most advantageous for the interests of the county, who shall be called the 'superintendent of the county asylum.'" This certainly confers a very wide range of discretion upon such boards.

To employ a superintendent to do certain things on certain "terms" is to contract with him.

The power thus conferred upon boards of county commissioners to employ and contract with a superintendent, in the absence of any restriction contained in the statute, of necessity carries with it the power to fix some term of service or time of duration of such employment. It was undoubtedly competent for the Legislature to place any restrictions they might see fit on the board in the employment of a superintendent, and provide that no contract of employment should be for longer than a given time, or even to forbid making a contract of employment for any certain and definite term. They have, however, not seen fit to do so. It must not be understood that there are no bounds to the discretion thus granted. We do not wish to be understood as holding that their action in the making of such contracts is not subject to review, and that a contract would not be annulled if it was shown that the board had abused its discretion in making it, but we do hold that unless it appears that there has been a clear abuse of discretion, and no fraud is shown, the courts will not interfere.

It is insisted, however, that this contract is void upon other grounds,--that it is in contravention of public policy, for the reason that to uphold it would put it in the power of one board of commissioners to bind the hands of its successors, and that it operates as an unwarranted abridgment of the "administrative, executive and legislative" powers of the board.

The first of the reasons assigned rests upon an erroneous conception of the constitution of the board of county commissioners --that that body consists of a series or succession of boards, one following the other. As we have heretofore said, the board of commissioners is a corporation, representing the county. From a legal stand-point it is the county, as is said in State, ex rel., v. Clark, supra.

It is a continuous body. While the personnel of its membership changes, the corporation continues unchanged. It has power to contract. Its contracts are the contracts of the board, and not of its members. An essential characteristic of a valid contract is, that it is mutually binding upon the parties to it. A contract by a board of commissioners, the duration of which extends beyond the term of service of its then members, is not, therefore, invalid for that reason. As individuals they are not parties to it.

This is clearly shown by Zollars, J., speaking for the court in the case of Reubelt v. School Town of Noblesville, 106 Ind. 478, 7 N.E. 206, where it was contended that a contract by the school board, employing a superintendent of the schools of the town, was void as against public policy, because it was made in May, preceding the annual election, in June following, of a new school trustee, and the reorganization of that board; and the employment was for a year.

It is there said: "The reorganization of the board, as required by the...