cited. The policy of imposing the cost of the construction and repairs of the levees on the lands benefited thereby was adopted by the legislature in reference to the levees in Desha and Phillips counties. The acts are explicit on that subject. By their terms these lands subject to overflow are divided into disEach district has its own officers to contract on behalf of the district for the construction of levees. Provision is made for raising a fund to pay for all levee work by an assessment on the lands benefited, and it is expressly provided that other lands and property in the county shall not be assessed or taxed

tricts.

for this purpose..

82445. The rule, that "where one takes a benefit from another's labor he is bound to pay for the same," does not apply to a county when the benefit is direct to the district within it, which is primarily liable.

The acts in question adopted a scheme for the construction of levees, and raising a fund to pay therefor, quite independent of the county proper in its corporate capacity. The contracts for levee work were to be made by the levee inspector of the district, and the work was to be paid for out of the levee fund arising from the assessment made on the lands in the levee district. The warrant or order for such payment was drawn by the levee inspector of the district on the levee treasurer of the county, an officer elected by the qualified voters of the levee districts of the county, and not by the qualified voters of the whole county, and was payable out of money in his hands belonging to the levee district in which the work was done. The levees that might be built were for the exclusive benefit and advantage of the land reclaimed from overflow, and for this reason the acts in question made provision for the whole cost of the construction upon the lands thus benefited. If this scheme proved inadequate for raising the funds, that does not make the county liable. The act does not provide that the county shall be liable in such an event, or in any event, and the general rule, "that when one takes a benefit from the result of another's labor he is bound to pay for the same," does not apply to cases of this kind, where the benefit arising from the work or improvement is immediately to the adjacent property and only incidentally to the county at large. Argenti v. San Francisco, 16 Cal., 255, opinion by Field, C. J. The acts impose no liability on the county. Neither the county court nor any ollicer of the county had any authority or power to enter into a contract, or make or create an obligation, binding on the county in relation to the work. It was suggested in the argument that a sufficient authority for the county court to bind the county in such case was found in section 9, article VI, of the constitution of 1836, in force at the date of the transaction, which declares "the county court shall have jurisdiction in every other case necessary to the internal improvements and local concerns of the county."

In 1857 an act was passed providing for the construction of levees in Chicot county, identical in many of its provisions with the acts here in question, and in McGhee v. Mathis, supra, the supreme court say: "Nor are the levees provided for by act of January 7, 1857, an 'internal improvement and local concern,' within the meaning of that clause of the constitution above cited. These terms, as there employed, relate to public internal improvements, and local concerns for general county purposes, which appertain to the county at large as a body politic, and not to improvements for special local purposes, where the funds expended in making the improvements are raised by assessments imposed only on the particular property improved." But in this case the county court has not attempted to make the cost of these levees a charge upon the

county, and, if it had done so, its act would have been a nullity. By the terms of these acts, there were but two parties to the contracts to build the contemplated levees- the levee inspector of the district, acting for and in behalf of his district, and the contractor.

§ 2446. None of the acts of Arkansas on the subject of the levees of Phillips county impose any liability upon the county as such, or authorize any liability to be assumed by it for levees constructed.

The act pointed out specifically the source from whence the fund was to be obtained to pay for such work, and limited the payment to that fund, and the parties must be presumed to have contracted in reference to these provisions of the act. The county was no party to the contract, and no contract or obligation entered into by a district levee inspector could bind the county. What the county court had to do in the premises was to levy such rate of tax within the limits fixed by the act, on the lands in each district as listed, assessed and reported by the levee inspector thereof, as might appear to be necessary to meet the obligations of the district. The county court was merely resorted to as a convenient and suitable agent for these purposes. If the county court failed or refused to discharge its duty, it might have been compelled by mandamus, or other appropriate proceedings at the suit of an aggrieved party, to perform its duty; but the failure of the county court to discharge any or all of the duties imposed on it by these acts would not render the county liable for the debts of the levee districts. If the money arising from the local assessments to pay the debts of the levee districts had gone into the county treasury and been used or appropriated by her for general county purposes, a different question would be presented; but the fact is conceded to be otherwise. The bonds or certificates sued on were issued by the county clerk, and were intended, doubtless, to conform to the requirements of section 19 of the act of January 15, 1861; if not issued by authority of that section, they are of no validity, because no other authority for their issue can be found.

66

There is an obvious error in the preamble to these renewal bonds; the clerk reciting that they are issued under and by virtue of section 11 of the act of February 16, 1859, when it is apparent that they must have been issued under section 19 of the act of January 15, 1861. That section expressly provides that each renewal draft issued by the clerk "should be confined to the county and district in which it was issued, and out of the fund of which the same is [to be] paid." They were intended to be, and declared to be, "renewals" of the drafts drawn by the levee inspectors of the several levee districts, and, like them, they were made payable in terms out of money in the treasury belonging to the levee district in which the work was done. The bonds in suit declare the levee treasurer" will pay the sum named therein "in part payment of work done according to contract within and for levee district No." They are not in terms payable out of the funds of any particular district, though the district in which the work was done, on account of which the bond is issued, is mentioned; and inasmuch as the act provides the work done in a district shall be paid for out of the funds of that district, it is probable the legal effect of these bonds is the same as if they had been made payable in terms out of the funds of the district liable for their payment. If this is not so, then the bonds on their face are void for non-compliance with the law, and the levee treasurer, though in possession of funds to do so, would not be authorized to pay them. Martin v. City and County of San Francisco, 16 Cal., 285; Bayerque v. City of San Francisco, 1 McAl., 175 (§§ 1987-90, supra). And

if they are treated as valid instruments, properly issued under the law, then they are payable only out of the funds of the levee district in which the work was done, and cannot be made the foundation of an action against the county. Dillon on Munic. Corp., sec. 413; Lake v. Trustees of Williamsburgh, 4 Denio, 520; McCollough v. Mayor of Brooklyn, 23 Wend., 458; Kingsberry v. Pettis County, 17 Mo., 479; Campbell v. Polk County, 49 Mo., 214.

This act of 1869 removed or postponed the bar of the statute of limitations, changed the mode of assessing the lands in the levee districts for levee purposes, and re-enacted with some emphasis the provisions of the act of 1859, relating to the duty of the county court to levy the required tax on the lands in the several levee districts to pay the debts of those districts respectively. This act is not repugnant to the constitution in any of its provisions, but it does not impose the liabilities of the levee district on the county.

Judgment for defendant.

§ 2447. Defined.— A county is strictly a political corporation; a granted power to a designated portion of the people, to aid an arrange the machinery of government of the whole state or territory. It is not designated for pecuniary profit, nor has it any powers but such as pertain to its strict municipal and public character. Treadway v. Schnauber,* 1 Dak. T’y, 236. 2448. Power to issue bonds. A county has no power to issue negotiable bonds to aid in building a railroad, unless such power is conferred by the legislature. Bonds issued by a county for such a purpose, and without such power, are void in the hands of every one. Ibid. See BONDS.

§ 2449. Power to take notes and mortgages.— A county in Oregon is a "body politic and corporate," and as such possesses power to take notes and mortgages and enforce them by the usual and proper legal proceedings. Alexander v. Knox, 6 Saw., 58.

§ 2150. Power to sue and be sued.— While a county, being a municipal corporation, may not be physically a citizen, yet it may sue and be sued in the courts of the United States, because it is but the name under which a number of persons, corporators, and citizens, may sue and be sued. M'Coy v. Washington Co.,* 3 Phil., 292.

§ 2451. Suits in behalf of a county, in whose name brought.- During the territorial government of Oregon, counties were represented and their business transacted by boards of county commissioners," but upon the organization of Oregon as a state, these boards were superseded by county courts, after which time suits begun on behalf of counties in the name of the "board of county commissioners" were mere nullities. (Citing Proprietors of Mexican Mill v. Yellow Jacket S. M. Co., 4 Nev., 42.) Alexander v. Knox, 6 Saw., 60.

§ 2452. Authority to tax, when mandatory.— A statute provided that if the current revenue of a county should not be sufficient to meet its debts, the board of supervisors "may, if deemed advisable," levy a special tax to pay such debts. Held, that these words were mandatory, and imposed a duty, as to which the board had no discretion, to levy such a tax to pay a judgment against the county. Supervisors v. United States, 4 Wall., 445.

§ 2453. Liability for infringement of patents by its contractors.- An infringement of a patent by contractors for a county does not subject it to liability. Jacobs v. Hamilton Co., 1 Bond, 504.

§ 2454. Sale of property by agents. The agents of a county, empowered to sell prope ty, can sell only the title and interest of the county, however the proceeds of the sale are to be applied. Hall v. Scott County, 2 McC., 356.

§ 2455. Claim against a county, how collected. The fact that the law of a territory provides for appeals by unsuccessful claimants from the decision of the board of county commissioners refusing to allow a claim against a county, does not deprive the claimant of the right at once to proceed by action in the courts without first presenting his claim to such board. Boswell v. County Commissioners,* 1 Wyom. T'y, 238.

§ 2456. Claims against towns.-Section 13, act of Rhode Island concerning towns, Digest, 299, requires claimants against towns to give notice of their demands to the treasurer of the town before an action will lie against the town to recover the demand, so that the treasurer may inform the inhabitants of the town of such claim. Such notice must be given whether the demand arises ex contractu or ex delicto. Holland v. Town Treasurer of Cranston,* 1 Curt., 497.

§ 2457. Bond to convey property to county.- Bonds for conveyance of real property to a county board of justices cannot confer a legal title, yet they are evidence to corroborate a

twenty years' possession of such property against the right of entry of the obligor or his heirs. Sargeant v. State Bank of Indiana,* 12 How., 371.

§ 2458. But such bonds are not judged by the strict rules of the common law, or of uses in trust, but by the policy of the statutes of the state which called them into existence; and where several acts of the Indiana legislature relating to the establishment of county seats authorized such bonds for conveyance to be given to county boards of justices, they were held valid, and to give the county an equitable right to the legal title; and in such cases the value of the property arising from the establishment of the county seats upon the property agreed to be conveyed in the bonds formed a sufficient consideration for them. Ibid.

§ 2459. Disputed boundary - Taxation.- Under the laws of Wyoming, where there is a dispute between two counties as to the proper boundary between them, and consequently whether certain property should pay taxes in one or the other, the owner of the property taxed cannot present his case for final adjudication to the county board of equalization of either county. Union Pacific R'y Co. v. Carr,* 1 Wyom. T'y, 103.

§ 2460. School money - Change of boundary.- Where school money has become due from a county to a school district, the fact that the boundaries of the county are subsequently so altered that the district falls within another county does not impair its right to compel the payment of the money to it. Brown v. Nash,* 1 Wyom. T'y, 96.

§ 2461. Appropriation.—An appropriation is to set apart or vote a sum of money for a particular object. It cannot be made at the date of the annual estimate of county commissioners of the public expenses of their county for the ensuing year, because at that time a considerable portion of the taxes assessed for the current year are not collected, and because much of the ordinary expenditure is paid out of funds which accumulated from taxes of previous years. It is essential to an appropriation by county commissioners that such commissioners, by warrant on the treasurer, indicate the specific object to which it is to be applied or set apart. It is then severed from the mass and “appropriated," and not before. v. Lawrence Co.,* 2 Pittsb. R., 137.

Pollock

§ 2462. An estimate of the probable expenses of a county for the ensuing year is not an appropriation. Ibid.

2463. County warrants.- County warrants in Arkansas are not negotiable paper so as to cut off antecedent equities in favor of a bona fide holder. County of Ouachita v. Wolcott,* 13 Otto, 559. See §§ 2420, 2421.

§ 2464. A statute of a state may properly authorize a county court to call in county warrants for examination and reissue, and may bar upon reasonable notice all warrants not presented in accordance with such requirements. Ibid.

§ 2465. The object of an order to call in county warrants for cancellation and re-issue, and of giving notice of such call, is to acquire jurisdiction over and bind those who do not voluntarily submit their warrants for examination and adjudication. (Citing Allan v. Bankston, 33 Ark., 744; Mohr v. Manierre, 101 U. S., 425.) Cissell v. Pulaski County, 3 McC., 446.

§ 2466. Where a county court has by statute power to issue county warrants in settlement of its debts, there is no implied power to fund such warrants by the issue of bonds, and bonds issued for this purpose are ultra vires of the county and impose no liability on it. Whitwell v. Pulaski County,* 2 Dill., 249.

§ 2467. In Arkansas, orders requiring outstanding county warrants to be presented for cancellation and re-issue, held void as to warrants issued before such orders were made, and the rights of holders of such warrants are not affected by such orders. Shirk v. Pulaski County,* 4 Dill., 209.

§ 2468. Five to one, and ten to one, county warrants of Arkansas; that is, warrants given for five or ten times the actual amount due, because of the depreciation of such warrants in the market, are unlawful and void as to the excess of such warrants over the sum actually due. Ibid.

§ 2469. The auditing of county claims and issuance of warrants therefor, in Arkansas, are not judicial acts determining the county's liability, and do not estop an inquiry into the liability of the county on the warrants or the consideration therefor. Ibid.

§ 2470. County warrants in Arkansas are not free from antecedent equities even in the hands of bona fide purchasers. Ibid.

2471. It was made the duty of county judges by state statute to "audit all claims against the county, and draw and seal with the county seal all warrants on the treasurer for money to be paid out of the county treasury;" the treasurer was authorized to pay only warrants thus drawn and sealed. The powers and duties of the county judge were afterwards transferred to a county board of supervisors, and the clerk of the district court was constituted their clerk and required to sign all orders issued by the board. Held, that the warrants were still required to be under seal. Smeltzer v. White, 2 Otto, 390.

§ 2472. A statute of Illinois provided that when a judgment shall be rendered against a

county no execution shall issue, but that the county commissioners' court shall draw a warrant upon the treasurer for the amount, "which shall be paid as other county debts." Such a warrant was applied for after judgment and refused. Held, that the failure to have procured the warrant was not available to the county on its writ of error being taken to the judgment. Supervisors v. United States, 4 Wall., 445.

§ 2473. Board of supervisors not a court.- Under the act of 1870, of Virginia, providing that the supervisors of the several townships in each county shall constitute the board of supervisors of the county, and that they may sue and be sued in all matters relating to their duties as such board; and empowering them to examine, settle and allow all accounts chargeable against the county, and when so settled to issue warrants on the treasurer therefor; and further providing that no action can be brought against the county until the claim shall have first been presented to the board of supervisors for allowance, the board of supervisors is not a court. Gurnee v. County of Brunswick, 1 Hughes, 270.

§ 2474. Action of board of supervisors at a meeting irregularly called, enjoined.—Where the statute law of the state requires that a special meeting of the board of supervisors of a county shall be holden only by request of the members, addressed to the clerk in writing, and specifying the time and place of such meeting, and the clerk shall immediately transmit notice in writing to each of the members of the board, a call of a special meeting by the clerk, on the verbal request of the members, is not sufficient to authorize the board to meet and initiate proceedings to result in contracting a debt on the part of the county to be paid by taxation. The board may be enjoined from carrying out the resolutions of such a meeting. Goedgen v. Supervisors, 2 Biss., 328.

§ 2475. Power of county court to contract debts.- Where the county court of a county is invested with jurisdiction and power to order the erection and repair of bridges, and is charged with the duty of taking care of and maintaining the poor, a limitation in the general revenue laws as to the rate or amount of taxes which may be annually levied for bridges and paupers does not measure the legal power of the county court to bind the county by contracts otherwise binding for these purposes. Kinsey v. Pulaski County, 2 Dill., 253. See BONDS.

§ 2476. People cannot annul contract of commissioners.- Where the commissioners of a county, specially authorized by legislative enactment to erect a court-house, by contract or otherwise, had made a binding and valid contract for that purpose, it was held that the contract could not be annulled by vote of the people of the county. Cook v. Commissioners of Hamilton County, 6 McL., 613.

§ 2177. Presumption as to fund out of which a loan is made.— Where the only money which a county treasurer had power to loan was a school fund, a loan secured by note and mortgage was presumed to have been made out of such fund. Alexander v. Knox, 6 Saw., 58. § 2478. Power of legislature.- The legislature may direct railroad stock held by a county to be distributed among the tax-payers whose money bought it. Commissioners v. Lucas, 3 Otto, 114.

§ 2479. The legislature may ratify an imperfect execution of a power conferred upon a county. Thomson v. Lee Co., 3 Wall., 330.

§ 2480. Tax-payers estopped.- Tax-payers of a county are concluded by the acts of their official agents and by their own failure to assert their right to prevent a transfer of a county subscription. County of Ray v. Vansycle, 6 Otto, 688.

2481. Act of Pennsylvania applicable to counties and townships only. The act of April 15, 1834, of the legislature of Pennsylvania, creating counties and townships bodies corporate, is not applicable to cities and boroughs. Oelrich v. Pittsburgh,* 2 Pittsb. R., 98.

VII. OFFICERS.

§ 2482. Bound by acts of.- A municipal corporation is bound by all acts and agreements of its mayor, city attorney, treasurer and other officers and agents whom it has ordinarily intrusted with such duties. Memphis v. Brown,* 1 Fiip., 188.

§ 2483. A municipal corporation can act only by its agents. The acts need not be done by inferior or subordinate agents, and the higher the authority of the agent, the more evident the responsibility of the corporation. Barnes v. District of Columbia, 1 Otto, 540 (§§ 2340–53). § 2484. In charging a municipal corporation with responsibility for the acts of its agents, it is immaterial whether they were appointed or elected, or from what source they are compensated, or whether they serve without compensation. Ibid.

§ 2485. Agents and officers of a municipal corporation cannot bind the corporation by any act which transcends their legitimate or lawful powers. This rule applies to the issue of negotiable evidences of debt. Treadway v. Schnauber,* 1 Dak. T'y, 236.