24 25 ited sense some portion of their duties may be of a judicial character.22 Their powers and duties are usually administrative in nature.23 Highway boards or commissions are deemed quasi or quasi public corporations, with official functions similar to those of corporate bodies of like nature.26 Regarded in its official capacity a highway board or commission is a continuous body, irrespective of its political changes.27 The members of such boards are public officers,28 exercising functions of an administrative,2 and not a judicial,30 character. However, they have been held not to be "officers" within the meaning of constitutional provisions relating to the creation of officers by special legislation,31 or requiring all officers to take and subscribe to an oath before entering upon the discharge of their duties.32 29 [§ 279] 2. Power to Create.33 Coincident with its power to erect and establish highway or road districts,34 or to delegate this power to subordinate bodies of a public character,35 and subject to the same limitations,36 the legislature may create or provide for the creation of highway bodies, such as boards or commissions,37 distinct from other local authorities,38 or it may avail itself of the county, town, or other existing quasi public local authority for such purpose.39 A fortiori, the legislature has authority to have such bodies or commissions conpolitical tribunal. Beirl v. Columbia | 525, 158 NW 302. County, 73 Or. 107, 144 P 457. 22. Guptail v. Teft, 16 Ill. 365. 23. Harrison v. Abington, 140 Ark. 115, 215 SW 255; Wright v. House, 188 Ind. 247, 121 NE 433; Rinder v. Madison, 163 Wis. 525, 158 NW 302. 24. McManus v. McDonough, 107 Ill. 95; Lancaster Highway Comrs. v. Baumgarten, 41 Ill. 254. 25. Miller v. Washington County, 143 Tenn. 488, 226 SW 199. See supra § 268. 26. See infra § 282. 27. Stone V. Ashford, 7 Newfoundl. 89. 28. Embree v. Kansas City, etc., Boulevard Road Dist., 257 Mo. 593, 166 SW 282; State v. Morehead, 256 Mo. 683, 165 SW 746; Pawling v. New York, etc., R. Co., 144 App. Div. 791, 129 NYS 643. And see infra § 278. 29. Harrison v. Abington, 140 Ark. 115, 215 SW 255; Peo. v. Wheeler, 21 N. Y. 82. And see infra § 282. 30. Harrison v. Abington, 140 Ark. 115, 215 SW 255; Peo. v. Wheeler, 21 N. Y. 82. And see infra § 282. 31. Garrett v. Limestone County, (Tex. Civ. A.) 230 SW 1010. 32. Nall v. Kelley, 120 Ark. 277, 179 SW 486. 33. Creation of: District see supra § 269. Office generally see infra § 290. 37. Cal.-Potter v. Santa Barbara N. J.-Brant v. Tracey, 70 N. J. L. 497, 57 A 125. N. C.-Ashe County Road Comrs. v. Ashe Bank, 107 SE 245; Hargrave v. Davidson County, 168 N. C. 626, 84 SE 1044; Yancey County V. Yancey County, 165 N. C. 632, 81 SE 1001; Youngsville Tp. v. Webb, 155 N. C. 379, 71 SE 520. fer with, and report to the legislature itself,4° or to a committee of that body, or to any other agency that it may select.42 Construction of statutes. 44 The statutes creating these boards or commissions should be liberally construed 43 so as to carry into effect the purpose of the legislature.14 A general township act, not containing any provision for a board of road commissioners and not conferring upon the township committee control over the roads of the township, does not repeal a general road act applicable to all townships unless an intent to do so clearly appears.45 48 [§ 280] 3. Selection, Eligibility, Tenure, and Compensation. The appointment or election, the eligibility and qualifications, the term and tenure, s and the compensation 49 of members of the boards or commissions, not being materially dissimilar from that of other highway officers, are treated below. [281] 4. Proceedings, Meetings, and Records.50 The rule is that highway bodies must act as a body and not separately.51 Ratification of individual acts. A board may ratify and adopt the individual acts of its members, if such acts are within the board's authority.52 Number requisite for action. A board may commonly act by a majority,53 although one member is 28. Ashe County Road Comrs. v. Ashe Bank, (N. C.) 107 SE 245; Hargrave v. Davidson County, 168 N. C. 626, 84 SE 1044; Yancey County v. Yancey County, 165 N. C. 632, 81 SE 1001; Garrett v. Limestone County, (Tex. Civ. A.) 230 SW 1010; Rinder v. Madison, 162 Wis. 525, 158 NW 302. V. [a] County commissioners.-Ashe County Road Comrs. v. Ashe Bank, (N. C.) 107 SE 245; Hargrave Davidson County, 168 N. C. 626, 84 SE 1044; Yancey County V. Yancey County, 165 N. C. 632, 81 SE 1001. [b] Permanent road commissioners.-Garrett v. Limestone County, (Tex. Civ. A.) 230 SW 1010. [c] In Wisconsin St. (1915) 1317m5 subd 8 (1) creates a commission to be appointed by the county board, to act with the state highway commission and the county commissioner in administering the county highway law. Rinder v. Madison, 163 Wis. 525, 158 NW 302. 39. Floyd v. State, 15 Ala. A. 654, 74 S 752; Bowman v. Essex County, 69 N. J. L. 109, 54 A 818; Harrington Tp. Road Commn. v. Harrington Tp., 55 N. J. L. 327, 26 A 915. [a] County board of chosen freeholders.-Bowman v. Essex County, 69 N. J. L. 109, 54 A 818. [b] County board of supervisors. -Potter v. Santa Barbara County, 160 Cal. 349, 116 P 1101. Delegation of legislative power to local authorities generally see Constitutional Law § 356 et seq. 40. Little v. Willimon, 103 S. C. 50, 87 SE 435. 41. Little v. Willimon, 103 S. C. 50, 87 SE 435. [a] Not encroachment on executive. A statute, requiring a county highway commission thereby created to meet, confer with, and report to the delegation from the county in the assembly with reference to the prosecution and discharge of their duties, is not invalid, under a constitutional provision, as to the separation of the three departments of the government. Little v. Willimon, 103 S. C. 50, 87 SE 435. 42. Little v. Willimon, 103 S. C. 50, 87 SE 435. S. C.-Graham v. Erwin, 103 SE 750. 43. Spraggins v. State, 183 Ala. Tex.-Garrett v. Limestone Coun- 663, 63 S 83. See generally Statutes ty, (Civ. A.) 230 SW 1010. [36 Cyc 1178]. Wis.-Rinder v. Madison, 163 Wis. 44. Spraggins v. State, 183 Ala.. 49. 50. See infra § 297. Necessity of concerted action to contract see infra § 283. 51. Conn.-Martin Conn. 192. v. Lemon, 26 Ida.-Whiteway v. State, 19 Ida. 322, 113 P 98. Ill.-Peo. v. Toledo, etc., R. Co., 270 Ill. 472, 110 NE 723; McManus v. McDonough, 107 Ill. 95; Russell v. Minteer, 83 Ill. 150; Deer Park Highway Comrs. v. Wrought Iron Bridge Co., 3 Ill. A. 570 [aff 101 I. 518]. Mich.-Taymouth Tp. v. Koehler, 35 Mich. 22. Wis.-Lawler v. Brennan, 150 Wis. 115, 134 NW 154, 136 NW 1058; Deichsel v. Maine, 81 Wis. 553, 51 NW 880. [a] Rule applied.-Where a paper was signed by the commissioners of highways, agreeing to dismiss a proceeding to assess damages for land for a road, no two of them being together when signing, and they had never met and conferred together in reference to the agreement, and had made no minutes or entry thereof, it was held no error in the justice to refuse to dismiss the proceeding. McManus v. McDonough, 107 Ill. 95. [b] In an emergency an individual commissioner has power to make a temporary crossing without special authority given to him at a regular or special meeting of the board of commissioners, where no expense would thereby be cast on the body politic. Meacham v. Lacey, 133 III. A. 208. 52. McCormick V. Boston, 120 Mass. 499; In re Hempfield Tp., 36 Pa. Co. 532. 53. Shoshone Highway Dist. V. Anderson, 22 Ida. 109, 125 P 219; Lancaster Highway Comrs. v. Baumgarten, 41 Ill. 254; McCormick v. Boston, 120 Mass. 499. See Furman v. Taylor, 16 NYS 703 (where a board of highway commissioners consisted of three, it was not necessary that they should meet at a regular or special meeting to bring a contract made by two of them, the other being present, within the statute). [a] Reason for rule.-"If this HIGHWAYS disqualified,54 except, it has been held, where those absent were not duly notified of the meeting.55 some jurisdictions all the commissioners must act In on questions requiring deliberation,56 the supervisors may and have divided the township except where among them,57 terial;58 and it has been held that it is only where or unless the act is purely miniswould be impossible to convene the board that the action of a minority is legal,59 notwithstanding a usage to the contrary. the board of commissioners, it was held there Where a vacancy existed was no authority in the remaining members to discharge the duties intrusted to the board.61 it in 60 A new board or set of officers may continue the proceedings commenced by a former board or set of officers,2 and may adopt the valid acts of a former board or set of officers.63 64 On collateral attack the proceedings of a board are presumed to be regular and done in the lawful exercise of authority, unless the contrary appears. Number of meetings. a board to meet at least once within a stated Where a tatute requires period,65 such requirement is not a prohibition to meet oftener.66 Notice of adjournment. was not so, acts of great importance V. 54. Shoshone Anderson, 22 Ida. 109, 125 P 219. Highway Dist. See Painter v. St. Clair, 98 Va. 85, 34 SE 989 (under a statute authorizing the opening of roads, providing that when either of the members of a district road commission to which an application for opening a made is personally interested therein road is by reason of ownership of any land affected, etc., the chairman of the board of supervisors shall summon the road commissioners from nearest district in which the missioners may have no such interest or relationship, to act on such application, such chairman must summon the whole board of such adjoining district, and not simply one of its members to take the place of the disqualified member of his commission). the com [a] Rule applied.-Issue of bonds. Shoshone Highway Dist. v. Anderson, 22 Ida. 109, 125 P 219. 55. Peo. v. Williams, 36 N. Y. 441 [overr Tucker v. Rankin, 15 Barb. 471]; Simmons v. Sines, 4 Abb. Dec. (N. Y.) 246, 4 Keyes 153; Todd v. Todd, 3 Hun (N. Y.) 298, 5 Thomps. & C. 531; Christy v. Newton, 60 Barb. (N. Y.) 332; Mericle v. Mulks, 1 Wis. 366. a 60. 61. 144. [29 C. J.] 563 affect the jurisdiction of the board of commission ers.68 Keeping of records. In the absence of statutes highway officers are not required to keep a record of their acts.69 However, the keeping of such records has been expressly required by statute;70 but unless specifically required no particular form or character of book is essential.71 73 upon Rescission of action and amendment of records. A board has a right to rescind its action or resolution theretofore passed and to adopt new resolutions necessary to make its action entirely clear.72 records may be amended to speak the truth The a proper showing, as where they fail in certain particulars by omissions of the clerk.75 the general rule 76 the records of such proceedings But under cannot be contradicted, aided, or supplemented by parol.77 Custody of records. Where by statute a certain officer is made the custodian of the records,78 such officer is entitled to their possession as long as he continues in office and in the proper discharge of the duties thereof.79 [282] 5. Powers and Functions 80-a. In General. Within its constitutional limitations, the legislature may grant to such boards whatever powers it may see fit.82 Extent and limits. Since these boards or commissions exist only for the purpose of the general pofunctions, all the powers with which they are inlitical government of the state,83 and are the agents and instrumentalities the state uses to perform its Scribner v. Hollis, 48 N. H. 30. Parish Road Dist. No. 19, 141 La. Police Jury, 254 Fed. 179; Crow v. 64. Floyd v. State, 15 Ala. A. 654, ing. 65. Cathcart v. New Durham Tp., Comrs., 145 Ill. 48, 33 NE 876. Peo. v. Toledo, etc., R. Co., 270 Ill. Taylor, 48 Ill. A. 403. 71. Peo. v. Cincinnati, etc., R. Co., 73. 275 Ill. 166. 113 NE 858; Peo. v. Chi- V. [a] Rule applied. An order commissioners of highways signed by only two, and not reciting a meetof ing, etc., of three, third, is void unless it affirmatively or notice to appears that the town had only two commissioners. 4 Abb. Dec. (N. Y.) 246, 4 Keyes 153. Simmons v. Sines, 56. Somerset Tp. v. Parson, 105 authorize amendment. Pa. 360; Logan v. Rochester Tp., 21 [a] Evidence held sufficient Pa. Super. 113; Batten v. Brandywine NE 858; Peo. v. Chicago, etc., R. Co., Tp., 5 PaLJ 546. nois Cent. R. Co., 275 Ill. 166, 113 Peo. v. Illi 57. Com. v. Colley Tp., 29 Pa. 121. 58. Brodhead v. Tp., 2 Lehigh ValLR (Pa.) 381. Lower Saucon 59. Scribner v. Hollis, 48 N. H. 30. 274 Ill. 209, 113 NE 147. Duties see infra § 801. Penal and criminal responsibility see Powers see infra § 298. Power to: Control and regulate use of highway delegate to tive power over roads to local au- 341, 30 S 858. CCA 669 (Kansas). "They [road districts] are but instrumentalities of the State and the trusted are the powers of the state.85 While these boards can exercise such powers, and such powers only, as are conferred on them by the constitution and the statutes of the state,se they may not be restricted to the exercise of powers expressly conferred upon them by the act creating them,87 but they may exercise such implied powers as are necessary to carry out the powers expressly granted,88 or such as are requisite to accomplish the purposes for which they were created.89 Acts done outside their statutory powers are void.90 Except as otherwise provided by law,91 highway boards or commissions, being of the nature of quasi public corporations, 92 ordinarily possess the powers and authority granted to bodies of that nature,93 in so far as they concern highway matters.94 While their powers may not be as comprehensive as those granted to municipal corporations proper,95 they are akin thereto.96 Generally, they may have control over the construction,97 maintenance,98 laying out,99 altering, and discontinuing 2 of roads and highways. They may be invested with the authority over the highways that the county commissioners or other officials had theretofore possessed.3 Mode of exercise. Such boards must exercise their powers in the manner prescribed by law. However, where the law does not prescribe the mode, such boards have discretion to adopt any mode reasonably well adapted to the end proposed.5 Discretion. Such boards within the limits of their powers may use their discretion; and courts have no authority to control such discretion in the absence of abuse.8 Notice of powers. Parties dealing with highway districts must take notice of their powers, and they cannot acquire greater rights than such officers exercising their statutory authority are authorized to confer.10 Surrender of power. Highway boards cannot validly surrender 11 or alienate 12 their police power to regulate highways. Withdrawal of powers. As a natural incident to its right to grant such powers,1 13 the legislature may, after conferring powers on a highway board or commission, withdraw them.14 Validating unauthorized acts. The legislature may validate the unauthorized acts of a highway commission.15 State incorporates them that they Challacombe v. Central Tp. Highway | the nature of their duties, requires may more effectually discharge their Comrs., 161 Ill. A. 115, 117]. that they should be vested with the appointed duty." Farmer v. Myles, [a] Limited to territory embraced discretion given them in the gensupra. See Madden V. Lancaster within district. Shoshone Highway eral supervision and control of the County, 65 Fed. 188, 191, 12 CCA 566, Dist. v. Anderson, 22 Ida. 109, 125 P public roads." Blundon v. Crosier, 569 (recognizing rule); Dillon Mun. 219. supra. Corp. § 25 (10a). 85. Madden v. Lancaster County, 65 Fed. 188, 12 CCA 566; Travelers' Ins. Co. v. Oswego, 59 Fed. 58, 7 CCA 669. 86. U. S.-Merchants' Nat. Bank v. Yancey County, 270 Fed. 834; Madden v. Lancaster County, 65 Fed. 188, 12 CCA 566. Ark.-Phillips V. Tyronza, etc., Road Impr. Dist., 224 SW 981; Stanfield v. Cleveland County Road Impr. Dist. No. 2, 142 Ark. 439, 219 SW 753; Harris v. Wallace, 139 Ark. 184, 213 SW 373; Miller County Highway, etc., Dist. v. Cook, 134 Ark. 328, 204 SW 420; Conway v. Miller County Highway, etc., Dist., 120 Ark. 510, 179 SW 1009. Ga.-Green v. Bibb County Road Bd., 126 Ga. 693, 56 SE 59. Ida. Shoshone Highway Dist. V. Anderson, 22 Ida. 109, 125 P 219. Ill. Ohio, etc., R. Co. v. Peo., 123 Ill. 648, 15 NE 276; Brauns v. Peoria, 82 II. 11; Challacombe v. Central Tp. Highway Comrs., 161 III. A. 115; Deer Park Highway Comrs. V. Wrought Iron Bridge Co., 3 Ill. A. 570 [aff 101 Ill. 518]. Ind. Eads v. Kumley, 67 Ind. A. 361, 119 NE 219. Mich.-Brandt v. Luce, 177 Mich. 184, 142 NW 1117. Miss. De Soto County v. Weatherford, 114 Miss. 259, 75 S 114. Mo.-Harris v. William R. Compton Bond, etc., Co., 244 Mo. 664, 149 SW 603. N. Y.-Coyne v. Greenburgh, 110 Misc. 598, 182 NYS 230; Wells v. Croton-on-Hudson, 69 Misc. 97, 124 NYS 1058. N. C.-Franklin Tp. Highway Commn. v. Gibson Constr. Co., 170 N. C. 513, 87 SE 330. Pa.-Gloman v. Finn, 15 Pa. Dist. 727. Tenn. Miller V. Washington County, 143 Tenn. 488, 226 SW 199. "It is a plain proposition that the highway commissioners have no powers except those conferred by the statute, and that they can perform no acts or impose no burdens except those plainly authorized by the statute; and when they undertake to perform any act which the statute does not say they may do, that act will be void." Ohio, etc., R. Co. v. Peo., 123 Ill. 648, 650, 15 NE 276 [quot 87. Miller v. Washington County, 88. Miller v. Washington County, Merchants' Nat. Bank v. Yan- 90. Ohio, etc., R. Co. v. Peo., 123 Ill. 648, 15 NE 276. 91. See constitutional and statu- 92. See supra § 278. Merchants' Nat. Bank v. Yan- 94. Merchants' Nat. Bank v. Yan- 95. Wheeling Tract. Co. V. Bel- See infra §§ 309-311. 97. 98. 99. See supra §§ 51-54. [a] The retirement of a bond issue is a matter in the discretion of the highway commission. Wagstaff V. Person County Cent. Highway Commn., 177 N. C. 354, 99 SE 1. Discretion of officers generally see infra § 298. 7. Magruder V. State Road Commn., 125 Md. 525, 94 A 153; McCarty v. Hudson County, 91 N. J. L. 137, 106 A 219; Yancey County v. Yancey County, 165 N. Č. 632, 81 SE 1001; Edens v. Navarro County Road Dist. No. 1, (Tex. Civ. A.) 211 SW 791. power with "The power is vested in . . . [the] board. and its discretionary can only be interfered where the proposed action is so arbitrary and devoid of merit, as to be fraudulent; and the result of gross abuse of discretion, such as to imply, not merely error of judgment, but perversity of will, passion, prejudice,, partiality, or moral delinquency." Edens v. Navarro County Road Dist. No. 1, (Tex. Civ. A.) 211 SW 791, 792. 8. Conway v. Miller County Highway, etc., Dist., 120 Ark. 510, 179 SW 1009. 9. De Soto County v. Weatherford, 114 Miss. 259, 75 S 114. 10. De Soto County v. Weatherford, 114 Miss. 259. 75 S 114. 11. Wheeling Tract. Co. V. Belmont County, 248 Fed. 205, 160 CCA 283. 12. Wheeling Tract. Co. V. Belmont County, 248 Fed. 205, 160 CCA 283. 5. Cleveland (Okl.) 173 P 206. Discretion generally see infra v. Gibson Constr. Co., 170 N. C. 513, 298. N. J.-McCarty v. Hudson County, "The character of their office, and 87 SE 330. 15. Merchants' Nat. Bank v. Yancey County, 270 Fed. 834; Sikes v. Douglas, (Ark.) 227 SW 988. [a] Contract held not ratified.A statute which ratified "all proceedings of the commissioners of road improvement districts" was not a legislative ratification of a contract awarding a grossly excessive fee to an engineer, the question of the fairness of the contract not falling within the term "proceedings of the commissioners," which refers merely to the regularity of the proceedings. Sikes v. Douglas, (Ark.) 227 SW 988. Duties and liabilities.16 Since these bodies are purely auxiliary to the state, all the duties with which they are charged are duties of the state,17 and their duties and liabilities are limited to such as are imposed or created by statute.18 [§ 283] b. Contracts 19-(1) In General. Ordinarily such boards have the power to make contracts in regard to matters within their jurisdiction.20 They may employ such agents and servants,21 and purchase such materials 22 as may be necessary or convenient for the proper carrying out of their work. Unauthorized or illegal contracts. They may not enter into unreasonable contracts,23 contracts that are illegal or against public policy, 24 or contracts wholly without the scope of their authority and powers.25 Who may attack validity. It has been held that a taxpayer may have a right of action to prevent the performance of the unauthorized contracts of highway commissions.26 Manner of making. Statutory provisions as to the particular manner in which such contracts are 16. Farmer v. Myles, 106 La. 333, 30 S 858. Liability for acts of highway officers or agents see infra § 304. 17. Madden v. Lancaster County, 65 Fed. 188, 12 CCA 566; Travelers' Ins. Co. v. Oswego, 59 Fed. 58, 7 CCA 669. 18. Madden v. Lancaster County, 65 Fed. 188, 12 CCA 566; Farmer v. Myles, 106 La. 333, 30 S 858; Dillon Mun. Corp. § 25 (10a). 19. Cross references: Contract for construction or repair see infra § 347. Contract of officers generally see infra § 299. Indebtedness and expenditures by officers generally see infra § 300. 20. U. S.-Merchants' Nat. Bank V. Yancey County, 270 Fed. 834. Ark.-Bradley County Road Impr. Dist. Nos. 1 and 2 v. Jarratt, 144 Ark. 260, 222 SW 14. Ill.-Ross v. Collins, 106 Ill. A. 396. Mass.-McCormick v. Boston, 120 Mass. 499. Mich.-Brandt v. Luce, 177 Mich. 184. 142 NW 1117. Miss.-Jones v. Lincoln County, 112 Miss. 626, 73 S 620. to be made must be complied with.27 A highway body to make a binding contract must act as a body, 28 one member alone being without power to do so.29 But if a contract is one that the board could lawfully have authorized, the board has power to ratify and adopt it.30 Employment of counsel. These boards may employ counsel to represent them in any litigation that may arise out of the performance of their duties and the execution of their powers;31 but not at the expense of the county.32 Grants of franchises. Where boards have been empowered to grant franchises for highway purposes,33 such franchises have been held to be contracts not subject to annulment by the granting power, in the absence of express authority.34 37 [§ 284] (2) Indebtedness and Securities 35—(a) In General. Except as provided by law, highway boards or commissions have no power to create a debt or liability;36 but such power may be expressly conferred by the legislature, or implied so far as is necessary to carry out the express powers conferred.38 They may have power to incur inSikes v. Douglas, (Ark.) 227 SW 988. | Duntz, 44 Barb. (N. Y.) 459. [b] In Arkansas, while Spec. [b] Value of services.-Where Sess. (1920) Act No. 114 authorized the commissioners before any asthe commissioners of a certain coun- sessment of benefits was made conty road improvement district, cre- tracted with an attorney for rendiated by Road L. (1919) No. 243, to tion of all services necessary in conmake settlement on failure of the nection with the district, the attordistrict, which was abandoned, to ney is not, where the project was carry out its contracts, the settle- abandoned without any assessment ments made by the commissioners, of benefits, entitled to be awarded although entitled to much weight and the entire fee agreed on, but is enthrowing on the landowners the bur- titled merely to the value of the den of showing that the allowances services rendered in preliminary were inequitable and unjust, were work, the contract to be regarded held not to be final. Gould v. Toland, merely as evidentiary. Gould v. To(Ark.) 232 SW 434. land, (Ark.) 232 SW 434. 24. Miller County Highway, etc., 25. Challacombe v. Central Tp. [a] Illustration.-The payment of money by the commissioners of a highway district to enable a party to procure the services of an attorney to institute suit in such party's name against the district to test the validity of the act creating it is Pa.- -Climax Road Mach. Co. v. unauthorized. Miller County HighCorydon Tp., 5 Pa. Dist. 436. N. Y.-Duntz v. Duntz, 44 Barb. 459. Tenn.-Miller v. Washington County, 143 Tenn. 488, 226 SW 199. [a] Improper motive.-A contract for work and labor may be enforced notwithstanding that the officer acted from improper motives. McCormick v. Boston, 120 Mass. 499. 21. Bradley County Road Impr. Dist. Nos. 1 and 2 v. Jarratt, 144 Ark. 260, 222 SW 14; Ross v. Collins, 106 Ill. A. 396; Brandt v. Luce, 177 Mich. 184. 142 NW 1117. [a] Illustrations.—(1) Employment of engineer to make survey. Bradley County Road Impr. Dist. Nos. 1 and 2 v. Jarratt, 144 Ark. 260, 224 SW 14. (2) Employment of clerk to make out tax list. Ross v. Collins, 106 III. A. 396. [b] Effect of abandonment of contract-Gould v. Toland, (Ark.) 232 SW 434 (on engineer's claim for services rendered). 22. Brandt v. Luce, 177 Mich. 184, 142 NW 1117; Climax Road Mach. Co. v. Corydon Tp., 5 Pa. Dist. 436; Scraper County v. Pine Tp., 4 Pa. Dist. 501. 23. Sikes v. Douglas, (Ark.) 227 SW 988. [a] Illustration.-A contract to pay an engineer five per centum on the contract cost of one million dollars, whereas a reasonable fee would be one per centum of such cost. way, etc., Dist. v. Cook, 134 Ärk. 328, [b] Effect of abandonment of dis- 26. Sikes v. Douglas, SW 988. (Ark.) 227 27. Brauns v. Peoria, 82 Ill. 11; Challacombe v. Central Tp. Highway Comrs., 161 Ill. A. 115; State v. Vice, 71 Miss. 912. 15 S 129; Gloman v. Finn, 15 Pa. Dist. 727. 28. Deer Park Highway Comrs. v. Wrought Iron Bridge Co.. 3 I. A. 570 [aff 101 Ill. 518]; Austin Mfg. Co. v. Ayr Tp., 24 Pa. Super. 91. General necessity of highway boards acting as a body see supra § 281. 29. Deer Park Highway Comrs. v. Wrought Iron Bridge Co., 3 Ill. A. 570 [aff 101 Ill. 518]; Austin Mfg. Co. v. Ayr Tp., 24 Pa. Super. 91., 30. In re Hempfield Tp., 36 Pa. Co. 532. 31. Gould v. Toland, (Ark.) 232 SW 434; Jones v. Lincoln County, 112 Miss. 626, 73 S 620; Duntz v. Duntz, 44 Barb. (N. Y.) 459; Miller v. Washington County, 143 Tenn. 488, 226 SW 199. [a] Rule applied.-(1) To determine validity of bond issue. Jones v. Lincoln County, 112 Miss. 626, 73 S 620. (2) To conduct a prosecution for obstructing a highway. Duntz v. [c] Statute not imposing duty on county or state attorney.-Shannon Code § 1629, 5768, providing for the prosecution of county or state suits by the county or state attorney, has no reference to an action brought against the chairman and clerk of a county court to compel them to sign road bonds. Miller v. Washington County, 143 Tenn. 488, 226 SW 199. And see generally Counties § 239. 32. Ross v. Bibb County, 130 Ga. 585, 61 SE 465. 33. See statutory provisions. See also Municipal Corporations [28 Cyc 866]. 34. Northern Ohio Tract., etc., Co. v. State, 245 U. S. 574, 38 SCt 196, 62 L. ed. 481 [rev_State v. Northern Ohio Tract., etc., Co., 93 Oh. St. 466, 114 NE 53]. 35. Indebtedness by highway offcers generally see infra § 300. 36. Merchants' Nat. Bank v. Yancey County, 270 Fed. 834; St. Louis, etc., R. Co. v. Peo., 200 Ill. 365, 65 NE 715; Sullivan v. Deer Park Highway Comrs., 114 Ill. 262, 29 NE 688; Brauns v. Peoria, 82 Ill. 11; Challacombe v. Anderson, 173 Ill. A. 144; Adams v. Macoupin County Highway Comrs., 151 Ill. A. 68; Walnut Tp. v. Heth, 9 Kan. A. 498, 59 P 289; International Harvester Co. v. Tuscarora Tp., 43 Pa. Super. 410. [a] Interest-bearing orders.-Sullivan v. Highway Comrs., 114 Ill. 262, 29 NE 688. 37. Cal. Potter v. Santa Barbara County, 160 Cal. 349, 116 P 1101. Mich.-Brandt v. Luce, 177 Mich. 184, 142 NW 1117. Miss. Love v. Yazoo County, 111 Miss. 802, 72 S 230. Mo.-Hardwicke v. Wymore, 228 SW 757. N. Y.-Peo. v. Queens County, 131 N. Y. 468, 30 NE 488 [rev 16 NYS 705]. Pa.-Climax Road Mach. Co. V. Corydon Tp., 5 Pa. Dist. 436; Scraper County v. Pine Tp., 4 Pa. Dist. 501. 38. International Harvester Co. v. Tuscarora Tp., 43 Pa. Super. 410; debtedness to the extent that means are available for such purpose.39 Indebtedness created for necessary expenses may be validated by express statutory provision.40 Limits of power. Where such power is granted it must be exercised within its limits, and for the particular purpose for which it was given.42 Where the statute limits the indebtedness that may be contracted to the funds in the treasury or to the amount of the revenue of the current year, a board has no power to anticipate the revenue of future years. Any acts of such board creating a larger indebtedness than the amount allowed are invalid.44 43 On abolition of a board leaving unpaid obligations moneys due to such board should be applied pro rata on all claims against it.45 47 [§ 285] (b) Bonds. Although, in the absence of statutory authority, highway boards or commissions have no power to create a debt or liability, the legislature may, and often does, authorize highway bodies to issue bonds for certain purposes and on certain conditions.48 In the absence of constitutional restrictions, the legislature may vest in such bodies the same authority for the issuing of bonds for public roads that other local authorities formerly had.49 Austin Mfg. Co. v. Ayr Tp., 24 Pa. 39. Sullivan v. Deer Park Highway Comrs., 114 Ill. 262, 29 NE 688; Walnut Tp. v. Heth, 9 Kan. A. 498, 59 P 289. 40. Merchants' Nat. Bank v. Yancey County, 270 Fed. 834. [a] Necessary expenses.-Gould v. Toland. (Ark.) 232 SW 434. 41. Sullivan v. Deer Park Highway Comrs., 114 Ill. 262, 29 NE 688; Brauns v. Peoria, 82 Ill. 11; Highway Comrs. v. Newell. 80 111. 587; Challacombe v. Anderson, 173 Ill. A. 144; Adams V. Macoupin County Highway Comrs., 151 Ill. A. 68; Walnut Tp. v. Heth, 9 Kan. A. 498, 59 P 289; Brandt v. Luce, 177 Mich. 184, 142 NW 1117; Franklin Tp. Highway Commn. v. Gibson Constr. Co., 170 N. C. 513, 87 SE 330. 42. St. Louis, etc., R. Co. v. Peo., 200 Ill. 365, 65 NE 715; Atty.-Gen. v. Bay County, 34 Mich. 46. Limitations on the power to issue bonds may be and often are imposed by the enabling statute,50 the most usual being to the effect that bonds shall not be issued in excess of a certain specified amount,51 or in excess of a certain per cent of the assessed valuation of the taxable property in the particular locality.52 It may be provided that the bonds should be sold to the highest bidder for cash,53 and, in such case, a sale and purchase of the bonds on credit or deferred installment payments is void;54 but it does not follow that the purchaser is in consequence of that fact entirely relieved from any liability to pay for the bonds;55 he may be liable in debt.50 Compliance with statute. The requirements of the statute conferring the authority must be substantially complied with in all material particulars 5 or the bonds will not be valid,58 in the absence of validating statute.59 However, mere irregularities will not invalidate the bonds,60 especially where they have reached the hands of purchasers for value without notice.61 In the absence of restriction,62 the serial amount and times of issuance of the bonds is within discretion of the board.63 Necessity of election. The legislature may, in the absence of constitutional restriction, authorize the Union County, 114 | 662; De Soto County v. Dean, 120 Miss. 334, 82 S 257; Madison County v. Howard, 119 Miss. 133, 80 S 524; Bookout V. Itawamba County, 103 Miss. 413, 60 S 568; Simmons v. Lightfoot, 105 Tex. 212, 146 SW 871; Moore v. Bell County Comrs. Ct., (Tex. Civ. A.) 175 SW 849. | 553; Rodgers v. N. C.-Ashe County Road Comrs. Tex.-Moore v. Bell County Comrs. Ct., (Civ. A.) 175 SW 849; Simmons v. Lightfoot, 105 Tex. 212, 146 SW 871. Utah.-Hartley 51. Merchants' Nat. Bank v. Yancey County, 270 Fed. 834 (in North Carolina); Valleytown Tp. Highway Commn. v. Webb, 152 N. C. 710, 68 SE 211. 52. Thompson V. Boone County Rd. Impr. Dist. No. 1, 139 Ark. 136, 213 SW 386; Harris v. William R. Compton Bond, etc., Co., 244 Mo. 664, 149 SW 603; Ashe County Road Comrs. v. Ashe Bank, (N. C.) 107 SE 245. 53. See statutory provisions. V. State Road 54. People's Guaranty State Bank Commn., 53 Utah 589, 174 P 639. v. Castle, (Tex. Civ. A.) 218 SW [a] District bonds not municipal 519. indebtedness.-The bonded indebted- 55. People's Guaranty State Bank 43. Sullivan v. Deer Park High- ness of a special road district cre- v. Castle, (Tex. Civ. A.) 218 SW way Comrs., 114 Ill. 262, 29 NE 688; ated under a statute, authorizing the 519. Brauns v. Peoria, 82 Ill. 11, 16; High-creation of special road districts and 56. People's Guaranty State Bank way Comrs. v. Newell, 80 I. 587; the issuance of bonds for the costs of v. Castle, (Tex. Civ. A.) 218 SW Adams V. Macoupin County High improvements on the landowners vot-519. Comrs., 151 Ill. A. 68. ing in favor of bonds, is not an in- 57. McSwain v. De Soto County debtedness, within a constitutional Spec. Road, etc., Dist., (Fla.) 88 S provision_limiting municipal indebt- 479. edness. Embree v. Kansas City, etc., 58. McSwain v. De Soto County Boulevard Road Dist., 257 Mo. 593, Spec. Road, etc., Dist., (Fla.) 88 S 622, 166 SW 282 ("The indebtedness 479. is against the lands and not against McSwain v. De Soto County the road district"). Road, etc., Dist., (Fla.) 88 S "It seems to be the policy of the law, and a very just one, that the accruing revenues of the year shall be appropriated to the wants of the year, and that no expenses should be incurred in the absence of money already levied to meet them. The true principle is, and should be, [b] Retirement of bonds may be to deny to public functionaries the left to the discretion of certain offipower to expend money in anticipa-cers or official boards under statute. tion of receipts, except in cases Wagstaff V. Person County Cent. where an actual levy has been Highway Commn., 177 N. C. 354, 99 made." Brauns v. Peoria, supra. 44. Merchants' Nat. Bank v. Yancey County, 270 Fed. 834; Valleytown Tp. Highway Commn. v. Webb, 152 N. C. 710, 68 SE 211. 45. Merchants' Nat. Bank v. Yancey County, 270 Fed. 834. 46. Issuance of bonds by county for highway purposes see Counties § 323. 47. See supra § 284. 48. U. S.-Wight V. Ida. Allen v. Doumecq Highway SE 1. 59. Spec. 479. 60. Potter v. Santa Barbara County, 160 Cal. 349, 116 P 1101 (if to each bond are attached its proper coupons, it is not an essential matter that the coupons shall have any number at all). 61. Rose v. Springfield, etc., Special Road Dist., 275 Mo. 590, 205 SW 54. [c] Action on breach of contract to purchase bonds.-In an action by a road improvement district against a brokerage firm for breach of a contract to purchase bonds, evidence [a] Rule applied.-That road disheld to show that the counsel upon trict commissioners have failed to whose approval the brokers agreed comply with the statute requiring to purchase, had actually approved the commissioners to certify to the the bonds rendering defendants county clerk a statement of the liable. St. Francis County Road amount of the bond issue and a deImpr. Dist. No. 2 v. Southern Trust scription of the land, does not inCo., (Ark.) 207 SW 52. validate bonds in the hands of a bona fide holder for value. Rose v. Springfield, etc., Special Road Dist., 275 Mo. 590, 205 SW 54. 49. Yancey County V. Yancey Miss.-De Soto County V. Dean, 50. Wight v. Avoyelles Parish Po120 Miss. 334, 82 S 257; Mobile, etc., lice Jury, 264 Fed. 705; Allen V. R. Co. v. Trapp, 119 Miss. 170, 80 S Doumecq Highway Dist., (Ida.) 192 P 62. Franklin Tp. Highway Commn. v. Gibson Constr. Co., 170 N. C. 513, 87 SE 330. 63. Ashe County Road Comrs. v. Ashe Bank, (N. C.) 107 SE 245. |