Carey, Lombard, Young & Co. v. Hamm

• Decision Date: 31 October 1916
• Docket Number: Case Number: 7418
• Citation: 1916 OK 922,160 P. 878,61 Okla. 174
• Court: Oklahoma Supreme Court
• Parties: CAREY, LOMBARD, YOUNG & CO. v. HAMM et al.

1916 OK 922

160 P. 878

61 Okla. 174

CAREY, LOMBARD, YOUNG & CO. v. HAMM et al.

Case Number: 7418

Supreme Court of Oklahoma

Decided: October 31, 1916

Syllabus

¶0 Counties--County Commissioners -- Personal Liability.

The county commissioners of Garvin county contracted as such with the plaintiff for certain lumber and building material to be used in the work of eradicating the "Texas fever tick." At the time the contract was made it was within the estimate duly made and approved by the excise board of Garvin county. Thereafter such estimate and the levy made thereunder were held to be void. Held, that the persons constituting the board of county commissioners were not individually liable to the plaintiff for the value of the material so bought.

Error from District Court, Garvin County; F. B. Swank, Judge.

Action by Carey, Lombard, Young & Co. against J. R. Hamm and others. From a judgment sustaining a demurrer to the petition, plaintiff appeals. Affirmed.

J. B. Dudley, for plaintiff in error.

Blanton & Andrews, for defendants in error.

BURFORD, C.

¶1 It appears from the petition in this cause that the plaintiff in error in August, 1915, sold to the defendants, Gray, Harrison, and Hamm, acting as the board of county commissioners of Garvin county, certain lumber and material to use in the construction of a dipping vat necessary in the eradication of the "Texas fever tick." It appeared that the commissioners, supposedly acting under the authority of Session Laws of 1909, c. 2, as amended by chapter 115, Session Laws 1910-11, had attempted to create a quarantine district in Garvin county, and appropriated the sum of "$ 2,500 for the eradication of the 'Texas fever tick'"; that they had included in their report to the excise board the amount of $ 2,500 as necessary for that purpose, and that the excise board had made the estimate in that amount, and had levied a tax sufficient to produce the same. The board of county commissioners bought lumber aggregating $ 290.17 from the plaintiff, and drew a warrant for $ 173.99 as part payment. It appears from the face of this warrant that at the time it was drawn against the contingent fund in which the $ 2,500 so appropriated had been included, it was within the estimate and funds provided by the excise board. Before the warrant had been paid, however, and prior to issuance of any warrant for the balance due, an action was brought to enjoin the allowance of any claims or the payment of any warrants against this fund, alleging that the levy had been illegally made, for the reason that it was not based upon a petition as required by law. It seems that the commissioners took the view that they had the discretionary power to create a fund, and the excise board that it had power to make the levy without petition. This view was concurred in by the district court, but upon appeal to this court the levy was held to be unlawful for the reason that the petition required by law had not been filed, and the issuance or payment of any claim against the fund was to be enjoined. Adams v. Board of County Commissioners of Garvin County, 35 Okla. 440, 130 P. 148. Thereupon the plaintiff brought this action against the individual members of the board of county commissioners and their official bondsmen to recover the amount of the lumber sold and delivered. To the petition alleging these facts a general demurrer was sustained, and from this judgment of the trial court the plaintiff brings the cause here for review.

¶2 We find no error in the judgment of the trial court. Although there is some conflict in American authority in regard to the liability of public officials for making contracts beyond their authority as such, the view adopted in this state is laid down in Martin v. Schuermeyer, 30 Okla. 735 at 735-738, 121 P. 248, 249, where it was said:

"The law is that an officer, contracting on behalf of a public corporation, and intending to so contract, is not personally liable on his contract, where he has been guilty of no fraud or misrepresentation, and where the person with whom he contracts has the same means of knowing the extent of his authority as he has, though he exceeds his authority, and for that reason does not bind the corporation (citing cases). The reason for this rule is that the powers of officers of municipal corporations are prescribed by law, and the public had equal means of knowing what the law is with the officers themselves."

¶3 This view is well sustained by both text book writers and the courts. Mr. Dillon, in his work on Municipal Corporations (5th Ed.) vol 1, p. 443, says:

"In the case of officers of municipalities, it has been sought to charge them with liability under contracts made by them in excess of their official powers in analogy to the principles under which the agent of a private individual becomes personally responsible for an ultra vires contract upon a representation, express or implied, that he has authority to make such contract on behalf of the principal. But the courts have refused to hold the officers of a municipality personally liable for contracts ultra vires, in the absence of actual fraud or deception. If a contract be made by an officer, acting officially, in excess of his authority, or unintentionally, under an innocent mistake of the law, without any intentional misrepresentation or deception, the officer is not in such case personally liable to persons with whom the contract is made. The authority and powers of the officers of a municipality are regulated by law, and all parties dealing with the officer must, at their peril, take notice of the nature and extent of his authority, and if the contract is invalid, because in excess of the powers of the officer, the persons contracting with him have no redress against him."

¶4 Many of the cases are collected in a monographic note to the case of Lawrence v. Toothaker, 75 N.H. 148, 71 A. 534, as...