Rounds v. Whatcom County

• Decision Date: 26 January 1900
• Court: Washington Supreme Court
• Parties: ROUNDS v. WHATCOM COUNTY.

60 P. 139

22 Wash. 106

ROUNDS v. WHATCOM COUNTY.

Supreme Court of Washington

January 26, 1900

Appeal from superior court, Whatcom county; H. E. Hadley, Judge.

Action by A. J. Rounds against Whatcom county. Judgment for defendant. Plaintiff appeals. Reversed.

Jere Neterer and O. P. Brown, for appellant.

A. E Mead and Newman & Howard, for respondent.

GORDON C.J.

Plaintiff appeals from an order and judgment of the superior court of Whatcom county sustaining a demurrer to his complaint. The question presented for determination is the liability of a county to laborers and material men on failure to take a bond from the contractor as provided by section 2415, 1 Hill's Ann. St. & Codes, upon a contract for road improvement under the act of March 15, 1893 (Sess. Laws 1893 p. 301). Section 2415 is as follows: 'Whenever the board of county commissioners of any county of this state, or the mayor and common council of any incorporated city or town, or the tribunal transacting the business of any municipal corporation, shall contract with any person or persons to do any work of any character which, if performed for an individual, a right of lien would exist under the law, or make any improvement for such county, incorporated city or town, or other municipal corporation, such board of county commissioners or mayor and common council of any incorporated town or city, or tribunal transacting the business of any other municipal corporation, shall take from the person with whom such contract is made a good and sufficient bond, with two or more sureties, who shall justify as bail upon arrest which bond shall be conditioned that such person shall pay all laborers, mechanics, and material-men, and persons who shall supply such contractor with provisions or goods of any kind, all just debts due to such persons or to any person to whom any part of such work is given, incurred in carrying on such work; which bond shall be filed by such board, or mayor and common council or other tribunal, in the office of the county auditor, in the county where such work is to be performed or improvement made.' It is urged by the respondent that in letting contracts for the construction and improvement of public roads and highways, as provided under chapter 123, Sess. Laws 1893, the county board of commissioners and the board of construction (which is appointed by the commissioners) are not the agents of their county, but merely statutory agents under a statute specially conferring that power upon them, and that the county cannot be held liable for their omission or neglect. In support of this position a great many cases have been cited. The cases from this court which are cited deserve special notice. The first is Clough v. City of Spokane, 7 Wash. 279, 34 P. 934, in which it was held that, where a city is grading and improving streets at the exclusive cost and expense of the abutting property, it is not required to take the bond provided by section 2415 supra. But an examination of that case discloses that the reason for the holding is not because the city authorities are merely statutory agents, but because it was ruled that no right of lien existed for work of that character when performed for a private individual. Sears v. Williams, 9 Wash. 428, 37 P. 665, 38 P. 135, and 39 P. 280, presented a similar question, and neither of these cases is analogous to the case at bar. In Wallace v. Skagit Co., 8 Wash. 457, 36 P. 252, this court held that the construction of a local ditch, the cost of which was payable solely by the district benefited, was not such a county improvement as required the commissioners to take a bond. It was there held that the construction of such a ditch was not a county improvement, but a purely local one, and that the commissioners acted as the statutory agents of the improvers. We do not care to extend the doctrine of that case beyond what was there decided, but the present case is easily distinguishable from that one. The improvement in the present case was something more than a merely local improvement for the benefit of a particular district. It was a county improvement in the broadest sense of that term. The sole authority to build county roads, under our law, rests in the county commissioners of the various counties and in the boards of construction which they are authorized to appoint. These roads are under their management, supervision, and control (sections 3767, 3768, 3807, 3820, 3821, 1 Ballinger's Ann. Codes & St.), and it is their duty to maintain and repair them, and the county is liable for personal injuries resulting from a defective highway. Kirtley v. Spokane Co., 20 Wash. 111, 54 P. 936. In Seanor v. Commissioners, 13 Wash. 48, 42 P. 552...