Cooper & Grove v. Lampeter Township

8 Watts 125

Opinion

The opinion of the Court was delivered by

Rogers, J.

The several counties and townships of this state have capacities, as bodies corporate, to sue and be sued by their corporate name, to take and hold real and personal estate within their respective limits, and to make such contracts, as may be necessary and proper, for the execution of the objects and purposes of the township or county. ■ The corporate powers are to be exercised by the commissioners and supervisors thereof, respectively, who are constituted, by the act of the 15th of April 1834, their agents and organs for the transaction of business appertaining to them in their corporate capacity. The commissioners of the respective counties are placed on the same footing with the supervisors of the townships. The same corporate powers are given to each; and if one of two supervisors can bind a township, for the same reason, one of the commissioners can exercise the corporate powers of the county. In this view, independently of the point immediately presented by the record, this case is of very general importance; for it is of consequence to know the extent of the authority with which the law has clothed public functionaries of every description.

I will premise, that it never has been seriously contended, that one commissioner is vested with any authority to act without the express sanction of a majority of the board. So far as regards such officers this has been the construction, whatever difference of opinion there may have been as to the power of supervisors. Corporations, like natural persons, are bound only by the acts and contracts of their agents, done and made within the scope of their authority. And if the agent of a corporation make a contract beyond the limits of his authority, although he himself may be bound in the same manner as the agent of a natural person would be, yet the corporation is not bound. This has been held as to private corporations, and the same principles apply, with some limitations and restric tions, to corporations of a public nature. An improvident exercise of power, although it may affect the agent's personally, yet furnishes no reason for an avoidance of the contract. The result is different when they clearly transcend their powers, for every person dealing with them is presumed to know the extent of their authority. A distinction has been taken in Wyman v. Hallowell and Augusta Bank, 12 Mass. Rep. 58, and Salem Bank v. Gloucester Bank, 17 Mass. Rep. 29, between the acts of an agent for his principal in common cases, and similar acts done by the servants or officers of a corporation. In the first case, it is said, the extent of the authority is known only between the principal and agent; whereas, in the latter, the authority is created by’statute, or is matter of record in the books of the corporation, to which all may have access who have occasion to deal with the officers. However this may be, to the full extent there laid down, in a private corporation, yet every person is supposed to know the restrictions upon the power of the officers of a'corporation of a public nature, and the- extént of their authority. The agents of a body corporate can act only in the mode and to the extent prescribed by the law creating such corporation. So where power is granted to several persons to transact private business, the rule is, all must join in the execution of the power. But this rule is never applied to public business of a judicial nature, nor to public business of a deliberative nature, though not strictly judicial. Commissioners of Allegheny v. Leckey, 6 Serg. & Rawle 170. But when the business is public or private, less than a majority can not act without express power given by the principal, unless- the act to be done is clearly ministerial. When the business requires deliberation, consultation and-judgment, one of two or more agents can not do it without, or contrary to the consent of their associates. In 5 Bin. 485, it is conceded, that where several persons are authorized to do an act of a public nature, which requires deliberation, all should be convened; because the advice and opinions of all may be useful, though they do not, as is there-said, unite in opinion. And in the same case, a clear distinction is taken between matters purely ministerial and those of a deliberative nature. By the twenty-first section of the’ act of 1834, it is made the duty of the supervisors ’ to make and maintain sufficient bridges over all small creeks, and rivulets, and deep gullies-, where the same shall be necessary for the ease and safety of-the-traveller. But in the twenty-first section it is enacted, that-where a river,-creek or rivulet, over which- it may be necessary to erect a bridge, crosses a public road or highway, and the erecting of such bridge requires more expense than it is reasonable that one or two adjoining townships should bear, the courts, &c., shall, on the representation of the supervisors, or on the petition of any' of the inhabitants of the respective townships, order a view, &c.; and if, on- the report of the viewers, it shall appear to the court, grand jury and commissioners of the county that such bridge is necessary, and would be too expensive for such township or townships, it shall be entered on record as a county bridge. The duty here enjoined is clearly deliberative. The supervisors must determine Avheth,er the creelr, rivulet or gully is such as to require a bridge for the ease and safety of travellers. In the first instance, it is their duty to ascertain and determine whether the erection of such bridge requires more expense than it is reasonable one or two adjoining townships should bear; and this can only be done on deliberation and consultation, and with the express assent and consent of both supervisors; or, Avhen it concerns the business of the county, by a majority of the board of commissioners. They must, in both cases, meet as a board, act as a board, for in no point of view can a duty of this description be considered as ministerial only.

It will hardly be pretended that one supervisor could authorise the erection of this bridge, Avithout the consent of the other, and the reason is, because it does not fall within the ordinary routine .of his duty; but is of such a nature as demands consultation and deliberation. The ordinary repairs of roads, bridges, and opening roads, authorised by the court of quarter sessions, are classed with ministerial duties, and these may be performed by one. But Avhen the question is as to the erection of a new bridge, the power does not exist unless Avitb :the assent of his associate. This would be investing one with authority Avhieh would lead to abuses, very detrimental to the tOAvnship, and of which this case, as there is some reason to believe, is an example. Riser, one of the supervisors, was -not consulted, perhaps because it was well known he Avould not sanction an expenditure the expediency and propriety of which was ■at least doubtful. Indeed it is proof that he expressly objected to it. It is said to be the custom for supervisors to act separately and independently in all matters appertaining to their duties as to roads and bridges, and that for their more convenient discharge the township of Lampeter was divided into two districts. This-usage, as it is •called, Avas under the act of 1803; and if true it can determine nothing •as to the construction of the act of 1836. Nor can the usage of one •township affect the construction of a general law, otherwise we would have as many laAvs as there are townships. It would be more to the purpose,to show that the act of 1803 had received a judicial construction, authorising one supervisor to make such a •contract. And further, that the acts were in these respects similar ■to these provisions. But so far from this being the case, in the one the power is committed to the supervisor or supervisors, and in the ■other to the supervisors; an alteration in the phraseology, certainly not unintentional, nor Avithout design, to produce a difference in construction. When the poAver is granted tó íavo or more, that it re■quires the consent of a majority is a principle, it is to be presumed, -Avell known by the legislature. It is conceded that one supervisor cannot levy a tax to pay the debts contracted and expenses incurred for the township. The consent of both is required, because it is a deliberative, and not a ministerial doty. For the same reason such contracts cannot be made by less than a majority of the board, as this would enable one to involve the township in expenses which would render a tax inevitable. They are not permitted to do indirectly what they cannot do directly. When damage is done to a road or bridge by a freshet or other accidental causes, or when it needs repair from the natural progress of decay, there can be no objection to the necessary expenditure being authorised by less than a majority. This is an absolute duty, which calls neither for deliberation nor consultation. And besides, the omission to perform such a duty in a reasonable time, subjects the officers to a penalty. And further, a prudent economy renders an immediate attention to the state of the work indispensable; but this is not the case when a number of individuals call for an improvement which the public have been accustomed to do without, and the expediency of which may admit of question. An implied assent, which would bind a private corporation, does not, I apprehend, apply to a public trust. Those who deal with such agents must take care to have the express consent of all to whom the law has entrusted the transaction of the public business. The inhabitants of the township whose interest must be protected, have a right to the counsel and judgment of all to whom such trusts are committed. The suit was brought on a contract for work, labour, and materials, &c., in the erection of a bridge built across Mill creek, in Lampeter township. It was truly supposed by the inhabitants and the supervisors, to be a bridge which required more expense than was reasonable the township should bear. On a petition, therefore, of a number of the inhabitants, the court and grand jury adjudged a bridge necessary. In pursuance of the recommendation of the court and jury, the commissioners approving of the same entered into a contract for the erection of the bridge. It was erected,'approved of in due form of law, paid for out of the county fund, with the aid of some private contributions, and must, notwithstanding the private subscriptions, be taken as county property. It belongs either to the county or the township, for undoubtedly the individual contributors can have no pretence to claim; and, as between those claimants, it must, upon every principle of justice, be adjudged to the county, with whose funds it was at least in part erected. This part of the case is very clear; but the doubt is, whether the additional wing-wall was part of the bridge. The evidence, however, shows that it was all one structure, built at the same time, although under another contract and firmly knit together. It is difficult to split it into parts, and to adjudge that twenty feet is, and that the remainder is not a constituent part of one whole. One of the plaintiff’s witnesses says, that wing-walls, when they are connected with the bridge, are considered part of it, and that when they are necessary, (as they were here,) they are always connected with it. But whether this was a wing-wall or an embankment can make no difference, for in either case it would be a county and not a township burthen, if the extension were necessary for the accommodation of the inhabitants in the use of the bridge itself. Those laws, which have in view the comfort and ease of travellers as well as the inhabitants of the respective townships, must receive a liberal construction so as to carry out the views of the legislature, which would not be according to their spirit and intent by limiting the expense .of the county, who are most able to bear such a burthen, to what might strictly or technically come within the description of a bridge.

It is the business of the commissioners to construct a passage way over the stream, in such a manner as to promote the ease and safety of the traveller; and it is but little consequence whether this be done by a wing-wall or an embankment. This must of necessity be left to the judgment of the commissioners, subject to the penalties prescribed in the act. And this view of the case receives countenance from The King v. The West Riding of York, 7 East, 588. It is there held, that by the common law declared and defined by the statute 22 H. 8, c. 5, and subsequent acts, where the inhabitants of a county are liable to the repair of a public bridge, they are liable also to repair to the extent of three hundred feet of the highway at each end of the bridge. Lord Ellenborough, who delivered the opinion of the court, says, I consider it as having been laid down long ago by Lord Coke, that the three hundred feet of highway at the ends of the bridge are to be taken as part of the bridge itself, being in the nature of the thing intimately connected with it, and the exact limits difficult in some cases to be ascertained from the continuation of arches beyond the sides of the river. The' statute of H. 8 meant to define the limit, which perhaps was uncertain at common law; but the statute still proceeds upon the assumption that there existed a common law liability of the county to repair the highway at the ends of the bridge, as well as the bridge itself, as appendages to it. All the authorities go to show that our statute does not prescribe the precise limits, but still that there is an obligation upon Ihe county to keep up and repair the highway beyond the immediate structure of the bridge, will not admit of doubt, either in the reason of the thing, or on the weight of authority. What the extent of their liability may be, must depend upon the peculiar circumstances of each case, or the nature of the ground and other matters which are not susceptible of being reduced to any precise rules.

In this case, the whole work, including the exterior of the wing-walls, was inspected by men appointed for that purpose. It was passed upon by them as one structure, and as such was approved by them. The question then resolves into this: Can one supervisor use the township funds for county purposes? A proposition which ■it is only necessary to state to insure an answer in the negative. The commissioners, it seems, deemed a bridge with a wing-wall twenty feet long, sufficient for every useful purpose. One of the supervisors, with others who were not altogether disinterested, were of a different opinion. They entered into the contract without and in opposition to the will of the other supervisors. Under these circumstances, there is nothing of which they can justly complain. This was in no sense a ministerial duty, but one which in every point of view required consultation and deliberation. It should have been decided by them as a board whether the extension was necessary, whether it was a township or a county expense; and the contract itself for the work should have been submitted to the judgment of both supervisors. We aré of opinion for this reason that the judgment should be affirmed.

Whether the township would be bound, if the contract had been made by the supervisors, is a point not altogether so clear. The act vests a discretion in the supervisors, and if on consultation they have determined that this was an expense which it was proper the township should bear, it may be doubtful whether their incorrect judgment should not be made to bear upon their principals, rather than on the contractors, who were not bound to examine the correctness of their decision. It may admit of question whether the remedy would not be the ordinary one, the loss of the confidence of their constituents, for an unwise and unskilful exercise of a public trust.

Judgment affirmed.