Bone v. Bowen

• Citation: 185 P. 133,20 Ariz. 592
• Decision Date: 13 November 1919
• Docket Number: Civil 1776
• Parties: T. BONE, Appellant, v. W. K. BOWEN, C. W. PETERSON and J. R. BRADSHAW, as Members of and Constituting the Board of Supervisors of Maricopa County, State of Arizona, and E. HACKETT, A. F. JONES, P. T. HURLEY, J. G. PETERSON and C. C. GREEN, as Members of and Constituting the Highway Commission for Maricopa County, State of Arizona, Appellees
• Court: Supreme Court of Arizona

185 P. 133

20 Ariz. 592

T. BONE, Appellant, v. W. K. BOWEN, C. W. PETERSON and J. R. BRADSHAW, as Members of and Constituting the Board of Supervisors of Maricopa County, State of Arizona, and E. HACKETT, A. F. JONES, P. T. HURLEY, J. G. PETERSON and C. C. GREEN, as Members of and Constituting the Highway Commission for Maricopa County, State of Arizona, Appellees

Civil No. 1776

Supreme Court of Arizona

November 13, 1919

APPEAL from a judgment of the Superior Court of the County of Maricopa. F. H. Lyman, Judge. Reversed, with directions.

Mr Richard E. Sloan, for Appellant.

Mr. L M. Laney, County Attorney, for Appellees.

OPINION

ROSS, J.

This is a companion case to Bone v. Highway Commission (just decided), ante, p. 587, 185 P 131, and has for its object the restraining of the board of supervisors of Maricopa county and the highway commission of Maricopa county from entering into a plan or scheme they have formulated, whereby the commission proposes to advance to the board the sum of $40,000, to be used by the board to purchase a rock-crushing plant to manufacture rock to be by them turned over to the highway commission at cost, and to be used by the commission in its program of highway construction. More in detail, it appears from the pleadings that the commission has in its possession $4,000,000 which it is authorized to spend in road construction in Maricopa county. This large sum was voted by the electors and taxpayers of the county upon the proposal submitted to them that it would be sufficient to construct and improve some 278 miles of highway described in the proposal. The effort is to make the money do the work. The scheme evolved by the commission is one thought to be in the interest of economy, and was devised solely for the purpose of securing the most possible road construction with the funds voted for road building. This is apparent from the pleadings upon which the question is submitted, as also from the arguments and briefs of counsel. It is stated that the crushed rock entering into the program of road construction alone will cost $500,000. The plan or scheme as stated by counsel for the highway commission is as follows:

"In its advertisement for bids the commission states that it will pay the contractor for the crushed rock furnished by him in the following manner: That is to say, by paying $40,000 at the time of entering into the contract, and then the balance after $40,000 worth of said crushed rock shall have been delivered to and accepted by the commission, cash on delivery. The highway commission and the board of supervisors of Maricopa county have a mutual understanding and agreement to the effect that said board of supervisors will put in a bid in response to said advertisement to furnish said crushed rock to the highway commission, said board of supervisors to name a sum certain per unit of measurement as its bid, but to make said bids so low as to pay only for the cost of production. It is admitted by both parties to the above-entitled cause that the board of supervisors, owing to the fact that it will not seek to make a profit, will be the lowest responsible bidder. In the event that the board of supervisors is the lowest responsible bidder for furnishing this crushed rock, then upon the contract being entered into and satisfactory security being given by said board, the highway commission will pay the said board the sum of $40,000, as a part payment of the purchase price of the crushed rock to be furnished under the contract. This sum the board of supervisors will use in purchasing and installing proper rock-crushing machinery to enable the said board to fulfill its contract."

It is the contention of appellant that the board of supervisors has no power or authority in law to bid or contract for the crushing and furnishing of the rock needed, or to purchase a rock-crushing plant to be used for that purpose. Looking into the provisions of chapter 31, Laws of 1917, and acts amendatory thereof, under which bonds for road building were issued and the highway commission was created and is acting, we find the powers and duties of the board of supervisors therein enumerated. They are given the power and duty: (1) To order and supervise the bond election; (2) to appoint the members of the highway commission and fill vacancies in the commission, and fix amount of commissioners' bond and approve it, and to remove a commissioner for just cause; (3) to publish at least two weeks before the bond election "without alteration or modification" the highway commission's report of its investigation and recommendation of highways to be improved, and to include in the call for election only such highways; (4) to pay the actual and necessary expenses incurred by the board in holding bond elections, etc., out of the general fund of the county until the road bonds are sold, when the general funds of the county shall be reimbursed; (5) to sell bonds issued to improve highways and deposit proceeds with the county treasurer in a special fund designated "highway improvement fund"; and (6) after the public highways have been improved, as in chapter 31 provided, to keep them in repair, paying therefor out of the general fund of the county.

The act contains a positive prohibition against any supervisor being appointed a member of the highway commission; and there are many prohibitions by implication against their participation either in the location or construction of the highways. For instance, they are forbidden the power to alter or modify the program of improvement proposed by the highway commission; the money derived from bond sale can be paid out only upon the order of the highway commission; any money expended by the board out of the county general fund in the organization program of improvement must be repaid to the county out of the highway improvement fund, and the only direct grant of jurisdiction over the public highways to the board is after the improvement is made.

Moreover, it is provided that "All work for which said bonds are issued shall be done under the supervision and direction of the highway commission."

The work of construction must be let by contracts after advertising and upon competitive bids in all cases except where the work costs $1,000 or less, when it may be done by the commission on force account.

The county is a body corporate, and, like other corporations must exercise its powers through its officers and agents. Contracts made by an officer or agent of the county, on its behalf, in pursuance to some law authorizing it, are contracts of the county. The obligation of the contract in such case is...