Heidelberg v. St. Francois County

100 Mo. 69

• Court: Supreme Court of Missouri
• Decided: October 15, 1889
• Status: Published

Opinion

Sherwood, J.

The facts developed in this cause were that the county court wanted to build a bridge over Big river, and the court and commissioner agreed upon certain plans and specifications for the building of the bridge, advertised the letting as provided for by law, and the J. A. Bullen Bridge Company was the lowest bidder for the building of the same, and the contract was made by the commissioner in accordance with the plans and specifications. The commissioner made report of the cost of the bridge before advertising and letting to the lowest bidder, and the county court made an appropriation for the payment of the building under plans agreed on with the Bullen Bridge Company. Before the Bullen Bridge Company commenced work under their contract, the commissioner contracted with plaintiff to build the abutments and pier wider and longer, and it was under this parol contract for extra work that plaintiffs sought to recover.

On the conclusion of the testimony the trial court gave a declaration of law to the effect that on the pleading and evidence the plaintiff was not entitled to recover, and judgment for the defendant, hence this appeal.

At the time when these matters mentioned in the petition occurred, the law relating to bridges had been changed by the act approved March 14, 1883, and, that act was in force. Laws, 1883, p. 31.

Sections 4314, 4316, 4317, 4319, 4320 of the amendatory act are as follows :

“ Section 4314. If the county court be of opinion that a bridge is necessary, and that it shall be built at the expense of the county, they shall determine in what manner and of what materials the same shall be built, and the probable cost thereof, and shall order the road commissioner to let the contract for building such bridge and for keeping the same in repair not less than two nor more than four years, to be determined by the county court.”

“Section 4316. The commissioner shall do nothing towards building the bridge after the letting thereof, until an appropriation for the same shall first be made by the county court.

‘Section 4317. Unless the court, from its own information, shall be satisfied as to the expense of building the bridge, it shall be the duty of said court to require the commissioner to proceed to the spot where the bridge is' to be built, and make an accurate estimate of the cost of building the same, according to.any plan or plans ordered by the court, or such as, in his opinion, may be best, and without delay make report thereof.”

“Section 4319. The commissioner shall advertise the time and place of letting the bridge at three public places in the township where such bridge is to be built, or by publication in some newspaper published in the county, or both, as the court may direct, for not less than twenty days prior to letting the same.

“Section 4320. He shall let the same, subject to approval or rejection by the court, by public outcry, to the person making the lowest bid. If such letting be approved by the court, it shall make an appropriation for building such bridge, and order the commissioner to contract therefor at the price let, who, in contracting, shall take bond, payable to the county, with two good and sufficient householders as securities, in such penalty as he shall deem sufficient to cover all damages which may accrue from the breach of such contract.”

Section 1218, Revised Statutes, 1879, on which the plaintiff relies, is the following: ‘If a claim against a county be for work and labor done,, or material furnished in good faith by the claimant, under contract with the county authorities, or with any agent of the county lawfully authorized, the claimant, if he shall have fulfilled his contract, shall be entitled to recover the just value of such work, labor and material, though such authorities or agents may not, in making such contract, have pursued the form and proceeding prescribed by law.”

I have traced that section to its origin, and find it was enacted in 1863 (Laws 1863-4, p. 110, sec. 3.), under the caption of “ Treasuries, QountyT It would seem from .this brief history of the section that there is no necessary connection between it and the special statute in relation to bridges.

When special powers are conferred, or where a special method is prescribed for the exercise and execution of a power, this brings the exercise of such power within the purview, of the maxim, expressio unius, etc.; and by necessary implication forbids and renders nugatory the doing of the thing specified except in the particular way pointed out. And this -rule obtains, as well in regard to the organic law as to the statutory law. The familiar principle here announced is tersely uttered by the English court of exchequer, in a comparatively recent case, where it is thus expressed :

‘ ‘ If authority is given expressly, though by affirmative words, upon a defined condition, the expression of that condition excludes the doing of the act authorized under other circumstances than those so defined: Expressio unius, exclusio alterius." North Stafford, etc. v. Ward, L. R., 3 Exch. 177; 12 R. I. 651; Smith v. Stevens, 10 Wall. 321; 1 Kent’s Com. 467, note d; 1 Sugden on Powers, 258, et seq.; City v. Whitney, 36 Con. 373; Dist., etc. v. The City, etc., 7 Iowa, 262; Coast Line, etc. v. City, 30 Fed. Rep. 649; Mayor, etc. v. Ray, 19 Wall. 475; Thomas v. Railroad, 101 U. S. 82; Broom’s Maxims, 651, 654; Anderson’s Law Diet. 436 et seq. “Affirmative specification excludes implication.” Maguire v. State, 62 Mo. 344; State ex rel. v. Laughlin, 73 Mo. 449; Rannells v. Gerner, 80 Mo. 480; Dwarris on Stat. 655 and cases cited; Ex parte Snyder, 64 Mo. 61.

If these authorities are to be our guide, I see no refuge from the conclusion that the provisions of the statute in relation to bridges must dominate this case. But, grant that section 1218 is to be considered in connection with the other sections already set forth, I do not see how this concession will better the position of the plaintiff; for certainly under the statutory provisions already quoted, in relation to bridges, the road commissioner could not be regarded as the “agent of the county lawfully authorized,” when he was proceeding in entire disregard of the plainest statutory provisions. Murphy, the road commissioner, was only “lawfully authorized,” when he took the steps pointed out in the bridge law.

But the concession may be made that Murphy was “lawfully authorized,” and still this broad concession will avail the plaintiff nothing;, because, according to his own admission as a witness, he had not complied with the liberal provisions of section 1218; he had not built the abutments up to the specified height, even under his parol contract with Murphy.

Again, inasmuch as the law in relation to bridges has been materially modified by the act of 1883, it may well- be held that being a subsequent and inconsistent law it repeals any inconsistent provision which, section 1218 contains, in consequence of such repugnancy.

But it is said, in substance, in one of plaintiff’s declarations of law that inasmuch as the bridge commissioner received and accepted the abutments and pier built by plaintiff, and the county court accepted said report and paid the Bullen Bridge Company for its work, that thereby the county is estopped from resisting a recovery by plaintiff. The doctrine of estoppel does not apply to counties. Nor could the county even by an order entered of record ratify the void act of the bridge commissioner (Wolcott v. Lawrence Co., 26 Mo. 272), for the reasons that his acts veing void, they were incapable of ratification. 26 Mo. supra; Johnston v. Wilson, 2 N. H. 202, and cases cited; Johnson v. Dist., 67 Mo. 319; Maupin v. County, 67 Mo. 327 and cases cited.

These views result in affirming the judgment.

Ray, C. J., Black and Brace, JJ., concur; Barclay, J., dissents.