Summary
In Lutz, a sanitary engineer contracted with the county to provide planning and supervisory services in exchange for compensation to be based upon a percentage of the cost of the public works with which he was involved.
Summary of this case from Bd., Cty. Com'rs v. L. Robert Kimball AssocOpinion
No. 18767
Decided November 18, 1924.
Sewer districts — Section 6602-1, General Code — Sanitary engineer's employment contract — Indefinite term and percentage basis — Payment limited to yearly compensation of county auditor — Section 6602-14, General Code — Contract executed before statute enacted.
A contract for professional services in connection with sewer construction, entered into between county commissioners and a sanitary engineer, pursuant to Section 6602-1, General Code, authorizing the employment "for such time or times and on such terms as they may deem best," such contract not providing for any definite period of time, but being purely upon percentage, based upon the preparation of plans and specifications and the supervision of the construction for an indefinite period, does not authorize the payment of a sum greater than the compensation received by the auditor of such county for any one year, as provided in Section 6602-14, General Code, even though such contract was entered into and partially performed before the passage of such law. A writ of mandamus praying for the allowance of a greater sum is properly refused.
ERROR to the Court of Appeals of Montgomery county.
In this case the record discloses that an action in mandamus was instituted in the Court of Appeals of Montgomery county, Ohio, on the relation of K.B. Allen, as sanitary engineer of Montgomery county, to compel the defendant in error, Joseph A. Lutz, as county auditor, to issue to him a voucher in the sum of $6,262.83, the same having been allowed by the county commissioners in, payment of services performed and rendered by Allen as such sanitary engineer.
The Court of Appeals made the following findings of fact and conclusions of law, which state the essential matters in controversy:
"That on April 8, 1920, K.B. Allen, the relator, was employed by the county commissioners of Montgomery county, Ohio, as sanitary engineer for said county.
"That on August 4, 1921, said county commissioners provided for the establishment of the Belmont Sanitary District No. 1 in said county, the same being outside of any municipality: that on the same day said Allen was employed by said commissioners as sanitary engineer for the institution of a sewer system in said district upon the following terms: 'For preparing the plans, making the necessary field surveys, maps, profiles, specifications, and estimates of cost, he shall be paid three and one-half (3 1/2%) per cent. of the estimated cost of such work; and for such professional services as he may render in giving necessary grades and lines, and supervising the construction of the work, he shall be paid three and one-half (3 1/2%) per cent. of the cost of the work actually done.'
"The court further finds that in pursuance of said employment Allen prepared plans, specifications, etc., which were approved by the commissioners, and began and is performing the necessary service in the supervision and construction of said sewer system; that the relator under said contract found it necessary to employ assistants and maintain offices, and so forth.
"The court further finds that employment was made under authority of Section 6602-1 of the General Code of Ohio, which provides: 'Any such board of county commissioners may employ a competent sanitary engineer for such time or times, and on such terms as they deem best; and, in any county having a population exceeding 100,000, the board of county commissioners may create and maintain a sanitary engineering department, to be under their supervision and in charge of a competent sanitary engineer, to be appointed by such board of county commissioners, for the purpose of aiding them in the performance of their duties under this act or their other duties regarding sanitation provided by law.'
"The court further finds that under Section 6602-14, General Code of Ohio [110 Ohio Laws, p. 342] the Legislature limited the maximum compensation to be received by any commissioner or sanitary engineer to the amount of the compensation received during the current year by the county auditor serving in the same county.
"The court further finds that relator has here tofore, presented bills for services rendered since such act took effect to the amount of the county auditor's salary, and that these have been allowed and paid; that the bills in question in this case represent services performed during the year following the taking effect of the amendment referred to, and have been allowed by the county commissioners, but that the county auditor refuses to issue warrant therefor.
"The court further finds that relator's contract of employment was subject to the statutory amendment becoming effective June [July] 29, 1923, as embodied in Section 6602-14, General Code of Ohio [110 Ohio Laws, p. 341].
"The court further finds that the relator's bill for services set forth in this case, being in excess of the amount allowable for services of the relator for the year beginning June 29, 1923, was illegal, and that the county auditor properly refused to issue warrant.
"The court further finds that relator is entitled to be paid a reasonable amount for the services performed by said Allen and his assistants prior to June 29, 1923.
"The court further finds that the limitation of salary heretofore referred to applies only to the compensation of the sanitary engineer, and that such sanitary engineer may employ assistants, upon such reasonable terms as may be fixed by the board of county commissioners.
"For the reasons stated, the court finds that the petition in mandamus should be dismissed and the writ refused. It is, therefore, by the court ordered and decreed that the defendant go hence without day, and that he recover from the relator his costs herein expended. To all of which findings and orders of the court, the plaintiff, by his counsel, excepts.
"This cause being heard on the motion of plaintiff to set aside judgment and for a new trial, the court, on consideration, overrule same, to which overruling of said motion counsel for plaintiff except."
To reverse the judgment of the Court of Appeals, error is prosecuted to this court.
Messrs. McCann Whalen, for plaintiff in error. Mr. A.H. Scharrer and Mr. R.E. Hoskot, for defendant in error.
A solution of the problem presented must depend on the force and effect which is given Section 6602-14, General Code (110 O. L., 341), which became effective July 29, 1923, nearly two years after the date of the employment of the relator by the county commissioners for "Belmont Sanitary Sewer District No. 1," which was on August 4, 1921.
So much of Section 6602-14, General Code, as affects this contract is as follows:
"Provided, however, that the maximum compensation received by any commissioners or sanitary engineer serving in any county affected by this measure shall not exceed the amount of compensation received during the current year by the county auditor serving in the said county."
It is the contention of the relator that his contract is of a private nature, and that no statute passed after the making of the contract and the entering upon its performance by the parties thereto can affect his rights thereunder. If the contract was of a purely private nature this contention might perhaps be right; but is it of that character? It is well established that county commissioners are creatures of statute; their authority and right to bind the public by contract are measured by statutory enactment, and to be valid must conform to the statute.
In the case of City of Lancaster v. Miller, 58 Ohio St. 558, at page 575, 51 N.E. 52, 55, it was said:
"Persons who deal with municipal bodies for their own profit should be required at their peril to take notice of limitations upon the powers of those bodies which these statutes impose."
This principle has been recognized many times by this court. Frisbie Co. v. City of East Cleveland, 98 Ohio St. 266, 120 N.E. 309.
While the statute, Section 6602-1, General Code, under which this employment was made, authorized the county commissioners to employ a sanitary engineer "for such time or times and on such terms as they deem best," yet the contract of employment is silent as to any fixed time. This might have been a difficult thing to have done at that time, as the exact plans and specifications and the amount and nature of the work were not known at that time. After the plans and specifications had been adopted, and the nature of the work, its probable extent, and other definite facts were known, the record does not disclose a renewal of the contractual relation between the relator and the county commissioners based upon the provision of the statute "for such time or times and on such terms as they deem best." Not only must the contract be upon "such terms" as the commissioners deem best, but it is equally mandatory as to such "time or times" as they deem best. In order to bind a subsequent board of county commissioners and future Legislatures, the right and power to so do must clearly appear, and not be left to inference alone from the nature of the contract and the kind of work affected thereby.
The policy of the law is rather against the power of one board of county commissioners to make contracts so indefinite in time that the same may extend beyond the life of the board, and thus bind another or future board, although in some cases such a contract may be valid and binding even though the performance of some part may be impossible until after the expiration of the term of the majority of the board as it existed when the contract was made. Yet the general rule is that such contracts, extending beyond the term of the existing board, and employment of agents or servants of the county for such period, thus tying the hands of a succeeding board, are not looked upon with favor unless the necessity or some special circumstances show that the public good requires such contracts to be made.
In this instance this contract was silent as to the time when it should be completed, and the Legislature has spoken in the meantime concerning the amount of compensation that may be allowed under this species of contract. In so doing we do not feel that legislative action impaired the obligation of a contract, for this contract ignored the statutory requirement as to "time or times," and was so indefinite in that regard that it transcended the spirit as well as the letter of the statute. Such a contract could not, therefore, come within the protection of the constitutional guarantee. Terms of contract should not be left to inference when one is contracting with a public board whose powers are prescribed by statute.
We are, therefore, of opinion that Section 6602-14, General Code, providing that the compensation of a sanitary engineer should not be greater in any one year than the compensation of the county auditor, affects and controls the contract in the present instance. While the defendant in error lays much stress upon the claim that the plaintiff in error was a public officer and many authorities are cited upon both sides upon this point, yet we are disposed to rest our conclusions upon the grounds above indicated.
Our conclusion is that the Court of Appeals in refusing the writ of mandamus was right, and that its judgment in so doing, and in all other respects, should be affirmed.
Judgment affirmed.
MARSHALL, C.J., ROBINSON, JONES, MATTHIAS ALLEN, and CONN, JJ., concur.