made in some cases where the contract was severable. So, also, the contract may embrace with lawful subject-matter other objects not included in the statutory authority, in which case the contract will be void as to all matters dehors the statute; and, unless they are severable from the valid portion of the contract, it will be entirely void.14

Extraordinary Expenditures-Popular Assent Thereto.

Extraordinary expenditures, such as the removal of a county seat, involving the construction of new county buildings, the erection of some large public improvement by the county, and especially the subscription of a county subsidy to promote the construction or completion of a railroad, canal, or other public work undertaken by private companies, are rarely, if ever, permitted without popular consent expressed at the ballot box. Full and strict compliance with such a condition precedent is. a sine qua non to a valid contract upon this subject. The public election must be duly held at the prescribed time throughout the county by the proper officers, and lawful return made, showing the statutory majority required, before the county officers are authorized to bind the county to any expenditure upon the subject.15 The courts evince no disposition to liberalize the rules of strict construction in this particular. The rule is so inflexible in such case that no tax can be imposed or liability incurred without the consent of the taxpayers. If the legislature requires this as a condition precedent to a contract, the mandate is imperative, and noncompliance with it avoids all contracts based upon it.1

16

14 People v. May, 9 Colo. 404, 12 Pac. 838; Hunt v. Fawcett, 8 Wash. 396, 36 Pac. 318.

15 Nelson v. Haywood Co., 87 Tenn. 781, 11 S. W. 885, 4 L. R. A. 648; Hobart v. Supervisors, 17 Cal. 23; Crooke v. Daviess Co., 36 Ind. 320; Colburn v. Railroad Co., 94 Tenn. 43, 28 S. W. 298; Allen V. Cerro Gordo Co., 34 Iowa, 54; Lewis v. Lofley, 92 Ga. 804, 19 S. E. 57; Dyer v. Erwin, 106 Ga. 845, 33 S. E. 63.

16 Reichard v. Warren Co., 31 Iowa, 381; Lewis v. Bourbon Co., 12 Kan. 186; State, to Use of Neal, v. Saline Co., 48 Mo. 390, 8 Am. Rep. 108. In Black v. Commissioners, 129 N. C. 121, 39 S. E. 818, it

County Liabilities Incurred upon Whose Authority.

All county liabilities not specially prescribed by law arise in consequence of the act of some board or officer authorized to represent the county and incur the liability. This liability may be contracted by the county board under general authority, or by a committee thereunto lawfully appointed by it, or by some officer duly authorized by statute. In some instances the course of action to be taken by the constituted authority to incur the liability is prescribed by the statute. The general rule of law is that that particular board or officer of the county empowered to do the act or make the contract alone has power to make the county liable. No other can assume the power and responsibility; he would be a mere volunteer, and could not bind the county by his acts. The method of official action is sometimes so prescribed by the statute as to become material to the contract. In such case the law must be substantially pursued, or the contract will not be binding; 18 as, for instance, if the statute prescribes that the contract shall be in writing, and shall be signed by specified officers, no action could be maintained upon

was ruled that a tax levy for building a courthouse was not such extraordinary expense, within the meaning of the Constitution, as to require its submission to popular vote. But see Dyer v. Erwin, 106 Ga. 845, 33 S. E. 63, where, on full and exhaustive examination, the conclusion was reached as stated in the text. See, also, Locke v. Davison, 111 III. 19.

17 Simmes v. Chicot Co., 50 Ark. 566; Tatlock v. Louisa Co., 46 Iowa, 138; Davis v. Linn Co., 24 Iowa, 508; ANTHONY v. COUNTY OF JASPER, 101 U. S. 693, 25 L. Ed. 1005; Merchants' Exch. Nat. Bank v. Bergen Co., 115 U. S. 348, 6 Sup. Ct. 88, 29 L. Ed. 430; BROWN v. BON HOMME CO., 1 S. D. 216, 46 N. W. 173; Chisholm v. Montgomery, 2 Woods, 584, Fed. Cas. No. 2,686.

18 State v. Marion Co., 21 Kan. 419; Bentley v. County Com'rs, 25 Minn. 259; Head v. Insurance Co., 2 Cranch (U. S.) 127, 2 L. Ed. 229; wherein Marshall, C. J., declared: "When the law prescribes to the corporation a mode of contracting, it must observe that mode, or the instrument no more creates a contract than if the body had never been incorporated." See, also, AGAWAM NAT. BANK v. SOUTH HADLEY, 128 Mass. 503.

an oral contract made by the designated officers, or written contract signed by other officers, though it be otherwise authorized by law.19

Illustrations.

Thus where the chairman of the board of supervisors, who was also ex officio chairman of the building committee, contracted with the plaintiffs for materials for a jail upon the credit of the county, but without express authority from the supervisors or the building committee, the court refused to infer the authority of the chairman in the premises, and held the contract void; 20 and it was held in the same case that a statement. by the chairman of the county board, made to the claimant in open session and without objection, that the board could not pay the bill that day, but would do so as soon as the work was accepted, did not constitute a contract binding as an obligation upon the county. And where a county tax collector employed an attorney to represent the interests of the county, the contract was held void, because that power was vested alone in the county court.2 So, also, it has been held in Indiana that a promise made by county commissioners to pay extra compensation for extra work by a contractor on a "free gravel road" was not binding upon the county, because the statute had imposed the expense of constructing these roads upon the landowners.22

21

19 Hasbrouck v. Milwaukee, 21 Wis. 217; City of Sacramento v. Kirk, 7 Cal. 419; Bonesteel v. New York, 22 N. Y. 162; O'Hara v. New Orleans, 30 La. Ann. 152; Hague v. Philadelphia, 48 Pa. 527; Starkey v. Minneapolis, 19 Minn. 203 (Gil. 166); Lebcher v. Custer Co., 9 Mont. 315, 23 Pac. 713.

But the ancient formalities in regard to corporation contracts are not now observed or required, even in case of public corporations. FANNING V. GREGOIRE, 16 How. (U. S.) 524, 14 L. Ed. 1043; City of Chattanooga v. Geiler, 13 Lea (Tenn.) 611; ROSS v. MADISON, 1 Ind. 281, 48 Am. Dec. 361; Bellmeyger v. Marshalltown, 44 Iowa, 564; City of Alton v. Mulledy, 21 Ill. 76; Montgomery Co. v. Barber, 45.

Ala. 237.

20 Rice v. Plymouth Co., 43 Iowa, 136.

21 Simmes v. Chicot Co., 50 Ark. 566, 9 S. W. 308.

22 Little v. Hamilton Co., 7 Ind. App. 118, 34 N. E. 499.

In Pennsylvania it has been decided that a county is not liable to an innkeeper for board and lodging of militia called out by the sheriff to quell a riot and keep the peace, but that the innkeeper must look to the sheriff personally.23 In regard to attorneys, it has also been held that the county is not liable for one appointed by the court to represent the prosecution in the absence of the county attorney; 24 nor when retained by the district attorney to assist him in a state case; nor one appointed by a justice of the peace; 20 nor for a special attorney to represent the county when there is a regular county attorney; nor for one assisting in the prosecution of a state case, even when retained by the county commissioners.28

Implied Contracts.

26

25

27

On the other hand, a county has been held liable in an action of assumpsit for the value of property or services of a person received and appropriated by it, in the absence of any express contract. In such cases, of course, knowledge of the facts must be brought home in due season to the county board in order to fasten liability upon the county.29 But the law will not imply a contract in conflict with an express contract,3 nor where an express contract is forbidden.31 An action will also

23 Raush v. Ward, 44 Pa. 389.

24 Miller v. Buena Vista Co., 68 Iowa, 711, 28 N. W. 31.

25 Tatlock v. Louisa Co., 46 Iowa, 138.

26 Davis v. Linn Co., 24 Iowa, 508.

27 Brome v. Cuming Co., 31 Neb. 362, 47 N. W. 1050.

30

28 Storey v. Murphy, 9 N. D. 115, 81 N. W. 23; Modoc Co. v. Spencer, 103 Cal. 498, 37 Pac. 483.

29 Madison Co. v. Gibbs, 9 Lea (Tenn.) 383; Butler v. Neosho Co., 15 Kan. 178; Brady v. New York, 10 N. Y. 260; Montgomery Co. v. Barber, 45 Ala. 237.

30 Emerson v. Washington Co., 9 Me. 95; Young v. Iberville Parish, 22 La. Ann. 87.

31 Hovey v. Wyandotte Co., 56 Kan. 577, 44 Pac. 17; Richardson v. Grant Co. (C. C.) 27 Fed. 495; Argenti v. San Francisco, 16 Cal. 255; McDONALD v. NEW YORK, 68 N. Y. 23, 23 Am. Rep. 144; Burrill v. Boston, 2 Cliff. 590, Fed. Cas. No. 2,198; The Collector v. Hubbard, 12 Wall. (U. S.) 1, 20 L. Ed. 272; Murphy v. Louisville,

lie against a county for money had and received under an ultra. vires contract, provided the money was applied to a lawful county purpose.32

FORMS OF CONTRACTS.

22. If the form of contract, or mode of executing the same, be not prescribed by statute, the contracts of counties may be made in the same way as those of other corporations, and may be either in writing or by parol.

Important county contracts, requiring the exercise of discretion, must, of course, be made by the governing board of the county, whether it be court, commissioners, supervisors, freeholders, or police juries. Such boards are required to keep a record of their proceedings, and it has been held that their action as a board can be proven only by the record. 33 In other cases proof has been admitted of the oral declarations of the

9 Bush (Ky.) 189; Curtis v. Fiedler, 2 Black (U. S.) 478, 17 L. Ed. 273; Thomas v. Richmond, 12 Wall. (U. S.) 349, 20 L. Ed. 453; Paul v. Kenosha, 22 Wis. 266, 94 Am. Rep. 598.

32 Peed v. McCrary, 94 Ga. 487, 21 S. E. 232; Borough of Henderson v. Sibley Co., 28 Minn. 515, 11 N. W. 91; MARSH v. FULTON CO., 10 Wall. (U. S.) 676, 19 L. Ed. 1040; Waitz v. Ormsby Co., 1 Nev. 370; Dowell v. Portland, 13 Or. 248, 10 Pac. 308; Allen v. LaFayette, 89 Ala. 641, 8 South. 30, 9 L. R. A. 497; Chapman v. Douglas Co., 107 U. S. 348, 2 Sup. Ct. 62, 27 L. Ed. 378; Morton v. Nevada (C. C.) 41 Fed. 582.

33 Rich v. Town of Mentz, 134 U. S. 632, 10 Sup. Ct. 610, 33 L. Ed. 1074; Cowdrey v. Town of Caneadea (C. C.) 16 Fed. 532; Crump v. Colfax Co., 52 Miss. 107; People v. Fulton Co., 14 Barb. (N. Y.) 56. But the contrary rule is the prevailing one. United States Bank v. Dandridge, 12 Wheat. (U. S.) 64, 6 L. Ed. 552; Wayne Co. v. Detroit, 17 Mich. 390; Bank of Columbia v. Patterson, 7 Cranch (U. S.) 299, 3 L. Ed. 351; Gassett v. Andover, 21 Vt. 342.

In Kentucky it has been held that where bodies like the county court have judicial powers, and also large administrative and executive powers, and are by law empowered to employ agents in the execution of the latter branch of powers, the acts of the agents are not in every case required to appear of record.