Decided September 11, 1934.
Public contracts — Employment of assistant to county sanitary engineer — Sections 6602-1, 6602-4 and 6602-8a, General Code — Employment contract constitutes general obligation of county, when — Taxation — Auditor's certificate not filed prior to execution of contract — Section 5660, General Code (101 Ohio Laws, 37) — Defect, rendering contract void, not cured, when — Section 6602-33c, General Code — Ratification of proceedings prevented, when — Public officers — Assistant sanitary engineer not engaged in general employment — Petition to recover for services rendered, insufficient, when.
1. The employment of an assistant to a county sanitary engineer by a board of county commissioners is governed by Sections 6602-1, 6602-4 and 6602-8 a, General Code; such employment contract, if valid, constitutes a general obligation payable out of general funds of the county raised, or to be raised, by taxation.
2. A contract of employment of an assistant sanitary engineer rendered void by the failure to have the auditor's certificate, as required by Section 5660, General Code (101 Ohio Laws, 37), filed prior to the execution of the contract, is not such a defect or irregularity as comes within the curative provisions of Section 6602-33 c, General Code.
3. Where the construction contract has not been let, the employment contract, which is a part of the proceedings of the board of county commissioners, comes within the exceptions of Section 6602-33 c, General Code, preventing ratification of the proceedings.
4. An assistant sanitary engineer whose employment is limited to engineering work to be performed in connection with a sanitary sewage district is not engaged in general employment and is not a public officer.
5. A petition in an action against county commissioners to recover for services rendered by an assistant county sanitary engineer fails to state a cause of action when there is no allegation that the county auditor had made and filed the certificate required by Section 5660, General Code.
ERROR: Court of Appeals for Auglaize county.
Mr. H.P. Williamson, for plaintiff in error.
Mr. Emmett D. Lusk, for defendants in error.
Plaintiff in error, K.B. Allen, was plaintiff, and the defendants in error, the County Commissioners for Auglaize county, were defendants in the trial court and they will be herein referred to in the relation they appeared in the trial court.
This is an error proceeding from the judgment of the Court of Common Pleas sustaining a demurrer filed by the defendants to the second amended petition of the plaintiff.
The material allegations of the second amended petition are, in substance, as follows:
That the defendants were the duly elected, qualified and acting commissioners of Auglaize county, Ohio, at the time of the filing of this action; that since the filing of the action Charles H. Frech has become a member of the Board of County Commissioners, has been made a defendant in the cause, and has waived service of summons; that the action is brought against the defendants in their official capacity as the Board of County Commissioners of Auglaize county; that on the twenty-fifth day of June, 1925, the Board of County Commissioners of Auglaize county, Ohio, pursuant to law, and by resolution, established The St. Mary's Lake Sanitary District, which said resolution provided that there be acquired, constructed, maintained and operated in said district a complete sanitary system to care for, treat and dispose of the sewage or surplus water from any or all parts of the district to a proper outlet.
Said resolution further provided that said board proceed to secure the services of a competent sanitary engineer for the purpose of making the necessary surveys, plans, etc., and to aid said board in the performance of its duties regarding such sanitary improvements, whereupon said Board of County Commissioners appointed George R. Schuster, county surveyor of Auglaize county, Ohio, as county sanitary engineer, at no added compensation, and provided in said resolution appointing said sanitary engineer that in accordance with the provisions of Section 2793, General Code, said George R. Schuster should assume all of the duties provided by law for such county sanitary engineer.
Thereafter on the twenty-seventh day of June, 1925, said George R. Schuster, county surveyor and sanitary engineer, as above set forth, submitted to the Board of County Commissioners his appointment of the plaintiff, K.B. Allen, as assistant and consulting engineer in connection with the county sanitary improvements, and thereupon said appointment was approved by said Board of County Commissioners.
Further, on said twenty-seventh day of June, 1925, plaintiff submitted a proposal and contract to said Board of County Commissioners of Auglaize county, Ohio, and by resolution on the twenty-seventh day of June, 1925, the terms and conditions of plaintiff's employment, as contained in his proposal, were accepted, and it was ordered that the contract submitted by and between said K.B. Allen and said Board of County Commissioners be signed and properly executed and ordered placed upon the commissioners' journal, whereupon, on the twenty-seventh day of June, 1925, the Board of County Commissioners of Auglaize county entered into a written contract with the plaintiff to carry on and do the work required as above set forth as an assistant and consulting engineer as aforesaid.
Further, said contract, among other things, provided that the said K.B. Allen, for the services to be rendered by him, should be compensated on the following basis: Two per cent (based upon the general estimated cost of said improvement) should be payable when the general plan for said improvement in said district or districts is presented to and approved by said board, and two per cent (based upon the detailed estimated cost of said improvement) should be payable when the detailed plans, specifications and estimates for such or any of the improvements are presented to and approved by said board and the State Department of Health. The balance, two per cent, should be payable during the progress of the actual construction and installation of the work, to be based upon monthly estimates due the contractor.
Plaintiff, thereafter, proceeded to make reconnaissances and surveys of all kinds, etc., and to compile all the data for the preparation of preliminary records, estimates, plans and specifications, also to prepare preliminary plans, estimates and reports, which preliminary plans and estimates were thereafter duly approved and accepted by the board of county commissioners, and under the terms of said contract prepared detailed plans, estimates, etc., which were approved and accepted by said board and by the Department of Health of the state of Ohio.
Plaintiff further alleges that at the time of the execution of said contract there was money in funds in the hands of the Treasurer of Auglaize county to pay for the same; that after the preparation by plaintiff and acceptance thereof by the Board of County Commissioners of the detailed plans and specifications aforesaid, said board refused and neglected to proceed upon the plans and estimates so furnished by plaintiff to build and complete said sanitary sewer disposal plant provided in the establishment of said The St. Mary's Lake Sanitary Sewer District, and that such has not been built or completed and the same has been abandoned.
Plaintiff alleges that under the terms of the contract hereinbefore mentioned there is due plaintiff from the defendants the sum of $6,260.21 for preparing the necessary reconnaissances, surveys and estimates, etc., for said system of sanitary sewers and disposal plant; that there is due plaintiff from the defendants for preparing the said detailed plans and estimates of said sanitary sewer system the sum of $5,464.40; that the plaintiff presented claims therefor to the defendants and on the twelfth day of November, 1932, said claims were rejected by the defendants.
Plaintiff prays for judgment against the defendants in the sum of $11,724.61, with interest from November 12, 1932, and costs.
At the time the contract referred to in the petition was entered into, there were in effect Sections 5660 and 5661, General Code, the pertinent parts of which read as follows:
Section 5660. "The commissioners of a county * * * shall not enter into any contract, agreement or obligation involving the expenditure of money, or pass any resolution or order for the appropriation or expenditure of money unless the auditor * * * thereof * * * first certifies that the money required for the payment of such obligation or appropriation is in the treasury to the credit of the fund from which it is to be drawn, or has been levied and placed on the duplicate, and in process of collection and not appropriated for any other purpose; money to be derived from lawfully authorized bonds sold and in process of delivery shall, for the purpose of this section, be deemed in the treasury and in the appropriate fund. * * *" (101 Ohio Laws, 37.)
Section 5661. "All contracts, agreements or obligations, and orders or resolutions entered into or passed contrary to the provisions of the next preceding section, shall be void * * *." (General Code of 1910.)
The sole question raised by the demurrer is whether the second amended petition states a cause of action in view of the fact that there is no allegation to the effect that the auditor had made the certificate required by the provisions of Section 5660, General Code, before said contract was entered into.
The provisions relating to sanitary sewer districts in effect at the time the contract was entered into were contained in Sections 6602-1 to 6602-13, both inclusive, General Code.
The employment of George R. Schuster, county surveyor, as sanitary engineer, was based on the provisions of Section 6602-1 and Section 2793, General Code. Section 6602-1, General Code, reads in part:
"Any such board of county commissioners may employ a competent sanitary engineer for such time or times, on such terms as they deem best". (110 Ohio Laws, 392.)
The provisions of Section 2793, General Code, are to the effect that the County Surveyor shall perform such other duties as such board from time to time requires.
The employment of assistants to the sanitary engineer is provided for in Section 6602-1, the pertinent part of which reads:
"Any such sanitary engineer in charge of such sanitary engineering department, so appointed by such board of county commissioners, may, with the approval of such board, appoint necessary assistants and clerks and the compensation of any such assistants and clerks shall be fixed and paid by such board." (110 Ohio Laws, 392.)
Section 6602-4, in part, provides:
"For the purpose of paying a part or the whole of the cost of construction, maintenance, repair or operation of any improvement provided for in this act or for paying the sanitary engineer provided for under the provisions of this act, and for paying for his assistants and all his other necessary expenses, the board of county commissioners may borrow money * * * on certificates of indebtedness * * *; or, for such purposes, the board of county commissioners may issue bonds as herein provided, or may appropriate money from any funds in the county treasury available. After the adoption of the improvement resolution, to provide means to pay the cost of any such improvement, the board of county commissioners shall, by resolution of said board, appropriate any funds in the county treasury available for that purpose, * * * or authorize the issue of bonds of the county * * *." (110 Ohio Laws, 340.)
Sections 6602-8 and 6602-8 a provide for assessing the costs of the improvement.
Section 6602-8 a, General Code, in part provides:
"For the purpose of paying the sanitary engineer provided for under the provisions of this act and for paying his assistants and all of his other necessary expenses and for the purpose of paying that part of the cost of the improvement or improvements to be paid by the county or of the interest to accrue thereon, the board of county commissioners may levy taxes, in addition to all other taxes authorized by law. Such levy shall be subject to all the limitations provided by law upon the aggregate amount, rate, maximum rate and combined maximum rate of taxation." (107 Ohio Laws, 445.)
It is contended by the plaintiff that his employment and contract are governed by the provisions of Sections 2411 and 2413, General Code, relating to the employment by the board of county commissioners, upon the written request of the county surveyor, of engineers and assistant engineers in connection with county work. These sections are general in their application and contain no specific provision with reference to the employment of a sanitary engineer or assistant sanitary engineer for a sewerage district, while the provisions of Sections 6602-1, 6602-4 and 6602-8 a, above quoted, specifically relate to such employment. It has been held that where there is a conflict between a general law and a special act, the special act will prevail. State, ex rel. Cleveland Law Library Assoc., v. Henry, Clerk of Court, 23 C.C. (N.S.), 541, 34 C.D., 371. And this being the case, the provisions of Sections 6602-1, 6602-4 and 6602-8 a governed the employment and contract of the plaintiff; and such employment was a special and not a general employment, and was for an indefinite period of time.
Under the provisions of above sections the compensation of the plaintiff under said contract could have been paid in whole or in part out of funds in the treasury available and appropriated for that purpose, or from proceeds of a tax levy made for that purpose, or from the proceeds of certificates of indebtedness issued for that purpose, as might be determined by the commissioners. There are no allegations in the petition to the effect that the compensation was to be paid out of funds other than the general funds of the county, and under the contract as pleaded, the contract, if valid, constituted a general obligation payable out of general funds of the county raised, or to be raised, by taxation.
It is also contended by the plaintiff that if a certificate of the auditor to such employment and contract was required by the provisions of Section 5660, General Code, the failure to have such certificate was cured by the provisions of Section 6602-33 c, General Code, passed April 14, 1927, subsequent to the execution of said contract, which reads as follows:
"All proceedings for the creation of sewer districts and for construction of sewer and water improvements under the provisions of sections 6602-1 to 6602-33, inclusive, prior to the taking effect of this act and all petitions granted, or the letting or awarding of contracts, or all contracts made and entered into, or proceedings preliminary to or in connection therewith, or certificates of indebtedness or bonds issued or to be issued or taxes and assessments levied or to be levied on account thereof, are hereby declared and held to be valid notwithstanding any defect or irregularity therein or any failure to conform strictly to the provisions of the above mentioned act, except that in any proposed district where the contract has not yet been let, the proceedings shall not be ratified unless state land to be benefited shall be included therein, with the power to assess such state land in proportion to its benefits the same as land privately owned, including the cost of preliminary surveys; the boards of county commissioners or other officials shall have full power and authority to complete all improvements in process of construction under said sections and to levy taxes and assessments for such improvements, and to sell bonds to pay for the construction of such improvements, and to do all things contemplated by the provisions of said sections necessary for the completion of such improvements."
If a certificate of the auditor was required under the provisions of Section 5660, General Code, the failure to have same prior to the execution of plaintiff's contract rendered such contract void, and a void contract is not such a defect or irregularity as comes within the curative provisions of said section. Furthermore, the petition shows that the contract for the construction of the sewerage improvements was not let, so the plaintiff's contract, which is a part of the proceedings of the board of commissioners, comes within the exception mentioned in the latter part of said section, which is to the effect that when the contract has not yet been let the proceedings shall not be ratified.
It is further contended by the plaintiff that his contract and the compensation to be paid him do not come within the purview of Section 5660, above mentioned, and that consequently no certificate of the auditor was required under said section to validate said contract. The plaintiff bases his contention on the case of Village of Mayfield Heights v. Irish, 128 Ohio St. 329, 191 N.E. 129, decided by the Supreme Court on May 16, 1934, the syllabus of which is as follows:
"Section 5625-33, General Code, requiring the certificate of a fiscal officer that funds are available for a public contract, does not apply to the employment of a village engineer under a contract fixing his compensation for the preparation of plans, specifications, profiles and estimates for proposed special improvements at a specified percentage of the estimated cost of such improvements."
The decision in this case is based on the provisions of Section 5625-33, General Code, which was passed April 13, 1927 (112 Ohio Laws, 406), upon the repeal of Section 5660, above mentioned. The pertinent part of Section 5625-33, General Code, is as follows:
"No subdivision or taxing unit shall * * * (d) Make any contract or give any order involving the expenditure of money unless there is attached thereto a certificate of the fiscal officer of the subdivision that the amount required to meet the same (or in the case of a continuing contract to be performed in whole, or in part, in an ensuing fiscal year, the amount required to meet the same in the fiscal year in which the contract is made), has been lawfully appropriated for such purpose and is in the treasury or in process of collection to the credit of an appropriate fund free from any previous encumbrances. Every such contract made without such a certificate shall be void and no warrant shall be issued in payment of any amount due thereon. * * * The term `contract' as used in this section, shall be construed as exclusive of current payrolls of regular employes and officers."
From the statement of facts in the case it appears that the employment of Irish was based on an ordinance passed by the village council on April 14, 1928, the pertinent part of which is as follows:
"That an engineer be and hereby is provided for the municipal engineering of the village, and that Charles A. Irish, a civil and municipal engineer be and hereby is employed as such engineer for a period from and after the passage of this ordinance to January 1st, 1930."
The employment was general and was not confined to any specific work to be done by the village. And in the opinion in the case it is held at page 333:
And being a public officer and coming within the exception to Section 5625-33 above mentioned, the only question that remained was whether he should be denied a right of action because he performed services under a contract which fixed his compensation therefor at two per cent of the estimated cost of such improvement.
Section 5660, General Code, in effect at the time the contract in the case at bar was entered into, did not contain the exception contained in Section 5625-33 above mentioned.
It would also appear that plaintiff in the case at bar was not in any sense a public officer. One of the characteristics of an office, as named in the definitions, is tenure, that is, duration and continuance. In other words, the person who is to be regarded as a public officer must be clothed, by virtue of law, with authority not incidental or transient, but for such time as denotes duration and continuance. 32 Ohio Jurisprudence, 863, Section 6. Ordinarily, an office requires something more permanent than a single transaction to call it into being. Hence, where persons are appointed for a definite purpose, and that purpose has been carried out, and the duty performed, their rights and duties terminate — there is no tenure or permanency to the position, which is usual or common to public office. 32 Ohio Jurisprudence, 864, Section 6.
In accordance with the principle that an office requires something more permanent than a single transaction to call it into being, it has been held that the members of a building commission, created to serve in connection with the county commissioners in the construction of a certain county building, members of a special building committee arranging for the heating of a new court house, and members composing a commission for the erection of soldiers' and sailors' monuments are not public officers. 32 Ohio Jurisprudence, 883, 884, Section 23.
The employment of the plaintiff was limited to engineering work to be performed in connection with the St. Marys Sanitary Sewerage District, and was not a general employment, and consequently under the authorities mentioned plaintiff was not a public officer.
The decision in the Mayfield Heights case, supra, being based upon a different statute, containing an exception not appearing in the section upon which this case is based, and the plaintiff here not being a public officer, the decision in that case does not apply to the facts in this case.
In the case of McGrew v. Village of Elmwood Place, 17 C.C., 676, 6 C.D., 106, 2 O.D., 224, involving the construction of Section 2702, Revised Statutes, relating to contracts of municipal corporations, which is similar to Section 5660 of the General Code, relating to contracts of county commissioners, it was held:
"A contract by a village which on its face binds it absolutely to pay a certain amount within a certain time to be ascertained thereafter, payment to be made out of the general fund, is within the Burns law, although it may have been expected that the payment would be made out of the proceeds of a street assessment, such limitation not being expressed in the contract."
As hereinbefore stated, the compensation to be paid under the contract in the case at bar was payable out of general funds of the county, and by analogy the decision in that case applies to the contract in the instant case.
This view is in accord with the decision in the case of Thomas, a Taxpayer, v. Board of County Commrs. of Butler Co., 28 Ohio App. 8, 162 N.E. 430, in which, in subdivisions 7 and 8 of the syllabus, it is held:
"County auditor's failure to file certificate, required by Section 5660, General Code, that money required for payment of obligation incurred or appropriation made by county commissioners is in treasury to credit of fund from which it is to be drawn or in process of collection, held fatal to proceedings for improvement of roads, under Section 5661, though it was to be paid for from sale of bonds."
"Duty of courts is to see that clearly expressed requirements of statute are strictly followed, though it sometimes works a hardship."
In the opinion in above case there is an extended discussion of the decisions on the Burns law, followed by a conclusion to the effect that there is no binding authority requiring the court to construe Sections 5660 and 5661 as not applying to contracts where improvements are to be paid for by an issue of bonds.
The fact that at the time of the execution of the contract there was money in funds in the hands of the Treasurer of Auglaize county to pay for the same did not in legal effect dispense with the certificate. City of Findlay v. Pendleton et al., Partners, 62 Ohio St. 80, 56 N.E. 649, 43 W.L.B., 203.
We therefore hold that the contract upon which the plaintiff bases his claim comes within the purview of Section 5660, General Code, requiring the certificate of the auditor to validate the contract, and as there is no allegation in the petition showing compliance with such section the petition does not state a cause of action.
Holding these views the judgment of the Common Pleas Court will be affirmed.
CROW, P.J., and KLINGER, J., concur.