Opinion
3 Div. III.
June 21, 1934. Rehearing Denied October 11, 1934.
Appeal from Circuit Court, Escambia County; F. W. Hare, Judge.
G. W. L. Smith, of Brewton, for appellant.
The sheriff was not authorized to obtain the materials, and there was no implied contract on the part of the county. Mere use of the materials was not an acceptance working an estoppel. Code 1923, §§ 220, 221, 231; Board of Education of Escambia County v. Watts, 19 Ala. App. 10, 95 So. 498; Ex parte Watts, 209 Ala. 115, 95 So. 502; Willett Willett v. Calhoun County, 217 Ala. 688, 117 So. 311; Allen v. Intendant Councilmen of LaFayette, 89 Ala. 641, 8 So. 30, 9 L.R.A. 497; State v. Metcalfe, 75 Ala. 42; Arrington v. Morgan, 75 Ala. 607; Greil Bros. Co. v. McLain, 197 Ala. 136, 72 So. 410; McKee v. Chilton County, 19 Ala. App. 392, 97 So. 610; Montgomery County v. Pruett, 175 Ala. 394, 57 So. 823; Ensley Motor Car Co. v. O'Rear, 196 Ala. 483, 71 So. 704; A. G. S. R. Co. v. Moore, 109 Ala. 397, 19 So. 804; Clanton v. Chilton County, 205 Ala. 103, 87 So. 345; Naftel v. Montgomery County, 127 Ala. 563, 29 So. 29; Penton v. Brown-Crummer Inv. Co., 222 Ala. 155, 131 So. 14. Common counts seeking a judgment against the county do not lie in this case. Marengo County v. Lyles, 101 Ala. 423, 12 So. 412; Code 1923, § 5680, 224, 225; Talley v. Com. Court, 175 Ala. 650, 39 So. 167; 2 Mayfield's Dig. 927.
C. B. Fuller, of Andalusia, for appellee.
It is the duty of the sheriff to keep the jail in a sanitary condition and of the commissioners to make appropriation for the purpose. The materials supplied by appellee were such as the sheriff was authorized to purchase in order to keep the jail in such condition. The county, by accepting and using the material, obtained the benefit thereof, and the law raised a promise to pay the reasonable value thereof. Code 1923, §§ 220, 221, 231; 11 Cyc. 478; Montgomery County v. Pruett, 175 Ala. 391, 57 So. 823; Allen v. La Fayette, 89 Ala. 641, 8 So. 30, 9 L.R.A. 497. The county may be liable on an implied contract within its contractual powers, and ratification of an unauthorized, if legally permissible, contract may be implied. Bice v. Foshee, 19 Ala. 421, 97 So. 764. The appellee's remedy was by suit at law. Scarbrough v. Watson, 140 Ala. 349, 37 So. 281; Marengo County v. Lyles, 101 Ala. 423, 12 So. 412.
This is a suit by appellee for the value of disinfecting material sold by it to the sheriff of Escambia county to enable him to keep the jail "clean and free from offensive odors" within the meaning of section 221, Code.
Section 220, Code, makes it the duty of the county commissioners to make an appropriation for the purposes expressed in subdivision 1, section 231, Code. By the latter section it is provided that claims shall have first priority out of the county treasury, which arise from costs for such expenditures as are set forth in section 221, Code. That section does not authorize the sheriff to contract for such supplies until an appropriation is made as in section 220. It therefore does not authorize him to contract or bind the county except within the appropriation made by the county commissioners.
Ordinarily the sheriff has no right to contract so as to bind the county, and may do so only as he is authorized by law. Mobile County v. State, 172 Ala. 155, 54 So. 995. The legitimate debts of a county are of two classes: (1) Those created by law, termed "involuntary"; (2) those in which the law permits counties to exercise a measure of discretion. Brown v. Gay-Padgett Hdwe. Co., 188 Ala. 423, 66 So. 161; Naftel v. County of Montgomery, 127 Ala. 563, 29 So. 29; Weakley v. Henry, 204 Ala. 463, 86 So. 46; Van Eppes v. Commissioners' Court of Mobile County, 25 Ala. 460.
A county may be held liable in a suit on the common counts in implied assumpsit for labor, material, or money accepted by it within the range of its contractual powers. Montgomery County v. Pruett, 175 Ala. 391, 57 So. 823; Scarbrough v. Watson, 140 Ala. 349, 37 So. 281; Montgomery County v. Barber, 45 Ala. 237.
But a county can only accept the use of such material by those county officers or agents who could have so contracted expressly.
The discretion to fix an appropriation for the purpose here involved is left by section 220 to the county commissioners. They, therefore, alone can so accept such material as to bind the county when its purchase either exceeds the appropriation or is made without one, and without their sanction. Section 186, Code. The authority of the sheriff does not exceed the terms of section 221 in respect to binding the county. Those provisions are mandatory, and any other right to contract by him to bind the county in that regard is impliedly prohibited.
When he did not pursue the mandatory provisions of the law, his contract of purchase was not merely not authorized, but was illegal and prohibited. When such material is so purchased, its use by him without the sanction of the county commissioners imposes no implied liability on the county. 84 A.L.R. 954; Litchfield v. Ballou, 114 U.S. 190, 5 S.Ct. 820, 29 L.Ed. 132; Bluthenthal v. Headland, 132 Ala. 249, 31 So. 87, 90 Am. St. Rep. 904; Cottonwood v. Austin, 158 Ala. 117, 48 So. 345; General Electric Co. v. Ft. Deposit, 174 Ala. 179, 56 So. 802.
A contrary view would wholly upset the discretion which the law vests in the county commissioners. Section 186, Code.
The question was presented by the general issue to the common counts.
We see no useful purpose to be accomplished by reviewing separately all the rulings assigned as error.
The plaintiff did not show a right to recover based upon either a valid express contract of sale or one implied by law from the use of the material by authority of such county officers as could bind the county by an express contract under the circumstances shown.
The defendant was therefore due to have been given the affirmative charge which was requested and refused.
Reversed and remanded.
THOMAS, BOULDIN, and BROWN, JJ., concur.