Pettis County, Plaintiff in Error, vs. Kingsbury, Defendant in Error, 17 Mo. 479

Scott, Judge, delivered the opinion of the court. When the road and canal fund was first distributed among the counties of the state, in February, 1833, the several county courts were constituted boards of internal improvements in their respective counties, for the management of it. They were required to appropriate it to the building of bridges, the opening of roads and making canals. The act of 1845, concerning the road and canal fund, which was in force when the contract involved in the present controversy was made, though somewhat variant in its provisions from that originally enacted, yet retains its main features. The seventh

section of this act requires the fund, when received, to be placed in the county treasury, and to constitute a separate fund, to be called the county road and canal fund,” and to be managed, stated and accounted for separately from the general funds of the county. The tenth

section of the act gives the county court control of the fund and directs its application to the construction and improvement of roads, bridges or canals, and forbids its use for other purposes. The object of these citations is to show that the county court, in its conduct in relation to the road and canal fund, acts in a different capacity from that it sustains, when acting in regard to the money of the county in the treasury ; that the road and canal fund is a separate one, devoted to particular purposes, and managed by the county court as a board of internal improvement.

If this view of the subject is just, it would seem to follow that, in weighing the conduct and interpreting the contracts of the county court in relation to that fund, we should not blend and confound its powers as a board of internal improvement, with those which it may exercise over moneys belonging to the county. The county court as such may, at the expense of-the county treasury, build bridges for the accommodation of its inhabitants. In so doing, it conforms its action and that of its agents to the law relating to the building of county bridges.

When a bridge is to be built with the road and canal fund, it acts as a board of internal improvement, and conforms its action to the law in relation to that fund. If the county court of Pettis county, in taking steps to build the bridge which has given rise to this controversy, acted under the law to provide for building bridges, it failed to take an important preliminary measure required by the seventh

section of that act. It does not appear that, either from its own information, or from the report of a commissioner, the court was informed of the cost of the bridge, or that any appropriation was made, conformable to an estimate of its cosri Nor was there any order in pursuance to the eleventh

section of the act, directing the expense of it to be paid out of any money in the treasury. This, taken in connection with the order for building the bridge, which was the first step in the matter, and with the warrant, which issued for paying for the bridge, shows that the county court, in this transaction, acted as a board of internal improvement. There is nothing in the order or in the warrant, which shows that the court intended to bind the county for the expense of building the bridge.

On the contrary, from the face of those papers, such an idea is excluded, and the obvious import o£ them is, that the bridge should be paid for out of the road and canal fund, and out of that fund alone, and this applies as well to the interest as to the principal. We do not conceive that there is any thing in the contract of the undertakers of the bridge, which is irreconcilable with this view of the subject. The contract must be construed in reference to the subject matter.

The order, appointing the commissioner to build the bridge, is the substratum of this whole transaction, and if the contract, in its terms, can be shown to be conformable to this order, we are not warranted in straining them, and by a kind of judicial midwifery, deliver it of an

interpretation, which never entered into the heads of those who were parties to it. The order of the court, directing the bridgG to be built, is recited in the bond of the undertakers. It will be observed, that the county court only binds itself as a court. The words of the bond are, “the county court of Pettis county, as said court, agrees,” &c. There are no words binding the county.

The order of the court expressly directed that the cost of the bridge should be paid out of the road and canal fund, and that the undertakers should wait for their pay until the amount should be obtained from the state, receiving interest on the sum at the rate of ten per cent, from the time it was due until paid.

Now, as it is obvious that this order was before the parties when they contracted, for it is recited in the bond, why should we put a construction upon the contract which would make the commissioner violate his duty, and the undertakers guilty of a fraud ; for it is a fraud, knowingly to obtain from an agent a contract in breach of his duty. There is nothing in the record which shows that the contract was ever in the office of the clerk, or was known to the court before the bridge was accepted, which was on the 8 th February, 1848.

Even if there was, there is no evidence that it ever approved the bond, in the sense in which it is understood by tho plaintiff. The warrant that issued shows how it interpreted the contract. The original parties to the contract put an

interpretation upon it which is entirely consistent with the original order. The warrant is a just

interpretation of the contract. It was accepted by the undertakers. As it cannot be shown that the county court ever sanctioned the bond containing the contract in any other sense than as expressed in the warrant, and as the warrant is in conformity to the order under which the commissioner acted, the contract, if variant from the order, is not obligatory on the court, for the want of authority to make it. The contract is not signed by the commissioner of the county. The undertakers and their sureties have only put their names to it. The court can only be made liable by showing that it was adopted by it.

But we conceive that the order, the contract, and the warrant harmonize, and it is only by discarding the order and warrant that a construction can be put upon the contract which gives the least countenance to the view of the matter maintained by the plaintiff. The same considerations which lead us to the conclusion, that the road and canal fund was only to be resorted to, for the payment of the amount of the cost of the bridge, incline ns to the opinion, that the interest, as an incident, would share the fate of the principal.

If the county court designed that the bridge should be built with thé road and canal fund, we see no reason why the interest, for the delay of payment, should be paid out of another fund. There is nothing in the contract which would any more warrant the payment of the interest out of the county treasury than the principal. This conclusion has been arrived at after mature consideration of the question.

We know that contracts for labor, that are to be paid out of the road and canal fund, unless it is already in the treasury, are undertaken at prices greatly above those at which they would be let if the satisfaction of them Was to be obtained out of the county treasury. Such contracts become a matter of speculation, and undertakers indemnify themselves by greatly increased prices. To permit them, when their ventures had resulted disastrously, to convert prices, obtained under such circumstances, into claims against the county treasury, would be great injustice.

It would be allowing them to play, beads I win, tails yon lose. There are counties in this state that would be bankrupted, if the holders of warrants on the road and canal fund could convert them into demands against the county — 'warrants that were issued for labor undertaken at ten times its real value, because of the mode of their payment. The other judges concurring, the judgment will be reversed and the cause remanded.