#### The County Commissioners of Randolph County, Plaintiff, v. Michael Jones, Defendant.

AN AGREED CASE FROM RANDOLPH CIRCUIT COURT.

An agreement to pay the county commissioners of Randolph county a certain sum of money, provided they will build a court-house on a particular lot, is not binding for want of mutuality, although they do build the court-house on the lot designated, the obligation to pay and to build not being reciprocal. (1)

A promise to pay the county commissioners to do an act which they are required to do by law, is against public policy, and therefore void.

The county commissioners of a coimty have no power to contract only as a court. (2)

(1)

Where a statute fixed the seat of government at Springfield, on condition that the inhabitants of Springfield should subscribe a certain sum of money towards erecting a state-house, and execute their bonds for the payment of the same: Held, that a bond given under such statute was founded on a sufficient consideration, and was valid. Carpenter v. Mather, 3 Scam., 374.

Where several persons sign a subscription paper, payable to a portion of their number, as trustees, whereby each one agrees to pay the sum set opposite his name, for the purpose of erecting a building, and the work is doiie by a mechanic, an action may be maintained by the trustees against any subscriber who refuses to pay his subscription. Robertson v. March et al., 3 Scam., 198.

In the last case referred to, the court make a distinction between that and the case of Co. Com’rs, &c., v. Jones, but do not question that decision.

(2)

The same principle held in County of Vermilion v. Knight, 1 Scam., 97.

Opinion of the Court by

Justice Smith.

This is an agreed case, and is submitted to the decision of this court by the following agreement:

“It is agreed by the parties in this suit, that a transcript of the record in this cause be taken to the supreme court for a decision of this question: Whether the instrument set forth in any count of the declaration, can be made the foundation of an action at law, taking all the statements and averments in the said counts to be true ?

If decided in the affirmative, then judgment to be entered up in this court at the next term, for the amount of Jones3 subscription, and costs accordingly. If decided in the negative, then the said suit to be discontinued, and that the respective parties enter their appearance at the next term of the supreme court.33

The instrument declared on is in the following words:

“We, the subscribers, promise to pay to the county commissioners of the county of Randolph, or their successors in office, the sums annexed to our respective names, at such times, and in such proportions, as the said county commissioners shall require, for the purpose of defraying, in part, the expense of a court-house for the county of Randolph: *238 provided, the said court-house shall be located and erected on a lot proposed to be granted to the said county by the Hon. Nathaniel Pope.”

The several counts in the declaration allege the consideration to have been the erection of the court-house on the proposed lot, and aver that the lot was granted to the commissioners—that the court-house was erected on the lot—and that the defendant was owner of lots and houses contiguous to such court-house; and assigns the breach a refusal to pay on demand.

The questions which present themselves for consideration, in determining th# validity and effect of the writing, seem to divide themselves into three distinct propositions:

1. The authority of the commissioners to enter into the agreement, or to accept one of its character ?

2. If they might legally do so, is the agreement mutual, or the obligation to pay, and to erect the building on the lot granted, reciprocal ?

3. Is there a sufficient consideration to support a promise ?

The authority of the commissioners to erect the courthouse, is derived solely from the act of the 24th March, 1819. It is made their duty, by the second section of that act, to cause to be erected a suitable court-house in their county, and where the county funds are insufficient for that purpose, they are required to levy a tax, and collect it agreeably to the act creating a revenue for this state. They are also authorized by the same section, to enter into contracts for the erection thereof, at any regular or special term of their court which they may appoint for that purpose. Have they pursued the powers thus granted to them ?

Their authority would certainly seem to be confined to entering into contracts with individuals, for the performance of the workmanship of the building, not for the purpose of raising a fund to defray the expense thereof, because such expense is to be paid out of the fund they are authorized to raise by taxation.

The law granting the power to erect the court-house, and making it compulsory on them so to do, gave the only power to raise the means to defray the expense thereof; and by so designating the power, would seem to exclude all other modes. It can not be contended that the act has in any of its parts, recognized the authority to receive gratuities or donations, for the purpose of forming a fund, out of which the commissioners are to discharge the debts which they might incur for the erection of the building. It is true, they are, nowhere forbidden, and although they might, with pro*239priety, receive the donation of money for such an object, the inquiry whether a court of justice can legally enforce such an obligation, where the court are not authorized by law to enter into one of such character, is certainly a very different question.

To show more clearly that the second section of the act could not possibly authorize an agreement of the present character, the power to enter into the contract is to be exercised only at a regular or special term of the county commissioners’ court. Here, it is evident, from the terms of the agreement, that the commissioners did not conceive themselves acting under that section, nor even as a court. If they had, they would most certainly have required the proposition to have been made at the sitting of the commissioners’ court, and had it entered on their record; but instead of that, it is a mere agreement with the commissioners by that name, and really, one which they had no power to enter into out of court. The acceptance and assent of the commissioners to the agreement is their own act, which, in their character as commissioners, they had no power whatever to agree to, for it will not be denied, even admitting that they had no power in term time to agree, that out of term they have any authority to do any act whatsoever not expressly conferred on them by law. None having been conferred on them, it most clearly follows, that their act is altogether extra-judicial and void.

On the second point, the inquiry is presented, whether the agreement is mutual, or in other words, whether the obligation to pay and to erect the building, is reciprocal. For the reasons already stated, it will be perceived that no obligation was imposed on the county to erect the building on the lot proposed, and that neither the commissioners in their official or individual capacity, nor the county, could in any way be rendered liable for a refusal to do it. The obligation is neither mutual or reciprocal; it is a promise by one party only. No engagement of any character whatever is made to erect the building. The act is altogether on one side. Reverse the case, and suppose an action brought against the county for not erecting the building, could it be insisted that the county would have been at all liable for the assent of their commissioners under this agreement, if it were possible to suppose, from the writing, that such assent was given, and could it be liable even if agreed to, when the commissioners exceeded the powers and jurisdiction given to them by law ? Clearly not. It is certain that to every valid contract there must be parties capable of contracting. Were the commis*240sioners capable of contracting in the manner stated ? If not, then there is an end to the .question. They could only contract in the manner authorized by law. This manner, most clearly, has not been pursued.

The law did not embrace the subject matter in the manner contracted for, if it be admitted that a contract was made, nor has the mode prescribed by law been observed. It therefore follows: First, that there is no evidence of a contract on the part of the county by their commissioners, and that therefore there is no mutuality of consideration, which is necessary to every contract. Second, that the commissioners had no power to bind the county in such a contract, and that they were bound by law to erett a courthouse.

Third, That a promise to them to pay money for the performance of an act they were obliged to execute by law, in the faithful discharge of their official duties, is illegal and against public policy, and therefore void. To the third question, whether there is sufficient consideration to support a promise, it is not perhaps necessary to say more than this, that the act of erecting a court-house, which was a duty imposed by law, could not be a consideration to support a promise. The fact of its location near the lands of the defendant, is of course the only ground upon which it could be contended that a consideration could be raised, and even this vanishes, when it is perceived that such a consideration is altogether equivocal and imaginary. It might or might not be of value to the defendant. No data can be assumed, by which it can be determined whether the erection of the building at the place proposed could benefit the defendant one cent or one hundred and twenty-five dollars, the amount of the subscription, nor whether it might not be an injury. It is not shown that any benefit has been experienced by the defendant from its location, nor injury sustained by the commissioners.

The consequences resulting from its location may have been an injury to other portions of the inhabitants, and upon the ground of public policy it is very questionable whether the court ought not to decide the contract void, for that reason alone.

I am of opinion that the present action can not be sustained on the writing set forth, and that the agreement of the parties to discontinue the suit, be'carried into execution, (a)

*241 T. Reynolds, for plaintiff.

Baker, for defendant.

(a)

Turn. Cor. v. Collins, 8 Mass. Rep., 298. Trustees of Phil. Lim. Academy v. Ezra Davis, 11 Mass. Rep., 113. See Religious Society in Whitestown v. Stone, 7 Johns. Rep., 112.

Separate opinion of

Chief Justice Wilson.*

I concur in the opinion that the agreement of the parties to discontinue this suit be carried into execution, but my opinion is founded upon the single objection, that it does not appear that the contract upon which suit is brought, was entered into by the county commissioners as a court; it is only in that character they are capable of contracting.

*

Justice Lockwood gave no opinion.