County Commissioners of Howard County v. Matthews

⁵⁵⁵ -D’iggus, J., .delivered the opinion of the Court. Under the provisions contained in chapter 217 of the Acts of 1910, commonly referred to as the Shoemaker Road Law, the County 'Commissioners- of Howard County, the appellants, on December 1st, 1916, entered into a written contract with the Amiesite and Stone Company for the construction or improvement of a road located in Howard County, known as Mike’s Quarter Road, between Lowndes’ Entrance and Mike’s Quarter, a distance of about three and seventy-four hundredths miles, with a substance known as amiesite. The original contract- was No. 453, and the work was known as a state aided road improvement, authorized by chapter 217 of the Acts of 1910, under which onedialf of the cost of the improvement was to be paid by Howard County and the other onedialf by the State Roads Commission. The contract was a unit contract and the original estimated cost of the entire work was about- $61,300.

This contract- called for dirt shoulders t-o support t-he amiesite surfacing'. The original contractor was required to give bond for the faithful performance of the contract, which was done, and the United States Fidelity and Guaranty Company became the surety on that bond. The Amiesite and Stone Company defaulted, and on April 17th, 1918, a .new contract in writing was entered into between the appellant and the appellee, Charles T. Matthews, he being an employee of the surety on the bond of the original contractor. Under the terms of the new or substituted contract the work was to be performed according to the same plans and specifications, and for the same unit price as set out in the original contract, and the 'Count,y 'Commissioners and State Roads Commission agreed therein to make payment to the substituted contractor, as was provided in the original contract should be made to the Amiesite and Stone Company.

In the late spring or early summer of 1919 the State Roads Commission decided that it would be advisable, and for the best interest of all concerned in t-he improvement, ⁵⁵⁶ that asphalt 'be substituted for amiesite. Under the -original contract, whereby the surfacing was -to 'be of amiesite, only dirt shoulders were required, but the substitution of asphalt as a surfacing material necessitated the construction of cobble shoulders. The contract price for amiesite surfacing, as agreed in the original contract, was $1.48 per square yard, while the substitution of asphalt increased the price $.04 per square yard over that of amiesite, making the surfacing cost $1.52 per square yard, and also the additional cost of cobble shoulders made necessary by the substitution of asphalt for amiesite. Having decided that this change was advisable, a meeting was held in the office of the 'State Roads Commission, at which meeting there were present Mr. Mackall, the chief engineer of the State Roads Commission, Mr. Zouck, the president of the commission, Mr. Earp> the president of the Board of County Commissioners for Howard County, Mr. Graham, attorney for Mr. Bladen Lowndes, Mr. Hunt, an overseer on the farm of Mr. Lowndes, and Mr. Lawrence, representing the United States Fidelity and Guaranty Company.

This meeting or conference was held during the summer of 1919 and prior to August 27 th of that year. Following that meeting Mr. J. N. Mackall, chief engineer, issued an order, known as extra work order, as follows: “State of Maryland, “State Roads Commission, Baltimore, Md. “Order for extra work done under contract No. 453 on section of State Highway in Howard County. “Dear Sir: “In accordance with paragraph 30 under contract No. 453 you are hereby ordered to do the following extra work: “7,000 sq. yds. cobble paving at $1.67. $11,690.00' “Excess cost on 30,000 sq. yds. asphalt paving at $ .04. 1,200.00 $12,890.00 ⁵⁵⁷ “It is estimated that the cost of this work will be $12,890.00. “Yours very truly, J. N. MacKall, “Chief Engineer. “Approved August 27, 1919. “F. H. Zouck, “Chairman.” Under the terms of the contract the engineer was required to make monthly estimates of the work done during the preceding month and certify the amount found to be due the contractor for work thus estimated, which certificate, together with the estimate, was required to- be furnished to the County Commissioners, and formed the basis of the payment made to the contractor, one-half of 'the total amount due being paid by the 'County Commissioners and the other one-half by the State Roads Commission. The first certificate and estimate received by the County Commissioners after the meeting in Mr. Mackall’s office, at which it is claimed asphalt was substituted for amiesite, was estimate No. 10, according to which estimate the amount due the contractor was $22,-350.99. Among the items making up this estimate was amiesite construction, 22,089 square yards, at $1.48, and cobble shoulders 4,747 square yards, at $1.67.

One-half of the amount shown by this estimate to be due the contractor was paid by the County Commissioners of Howard County; the said estimate and certificate included the work done from September 25th, 1919, to June 19th, 1920. The next succeeding certificate and estimate, being No. 11 for work done by the contractor from June 19th, 1920, to August 5th, 1920, was made by the engineer on August 9th, 1920, and included in estimate No-. 11 were these items, “Amiesite Construction, at $1.52, $46,996.95,” and “7,130.7 cobble shoulders, at $1.67, $11,908.27.” Certificate and estimate No-. 12, being the final estimate at the completion of the road, was dated December 31st, 1920, for wo-rk from August 5th, 1920, to October 5th, 1920, being, as stated, the final estimate. Esti ⁵⁵⁸ mate No. 12 contained these items: “31,047 Sy., Amiesite Construction $47,191.44” and “7,130.7 Sy. cobble shoulders $11,908.27.” The one-half of the amount shown by estimates 11 and 12 as being due the contractor, which was to have been paid by the State Roads Commission, was paid by that commission. The remaining one-half, for which it is claimed the County Commissioners of Howard County were liálble, was not paid, payment being refused for the reason, as claimed by the County Commissioners, that their board had not legally authorized the construction of any cobble shoulders along the road under improvement.

Railing to obtain payment from the County Commissioners of Howard County, the appellee, Charles T. Mattehws, brought suit against the County Commissioners of Howard County in the Circuit Court for Howard County. The case was subsequently removed for trial to Baltimore County, where a jury trial was had, resulting in a verdict'and judgment for the plaintiff, appellee here, for the-sum of $8,956.12. It is from this judgment that the County Commissioners of Howard County have taken this appeal. During the 'progress of the trial the appellant reserved 'fifteen exceptions, thirteen having been taken to the action of the trial court in the rulings upon evidence, the fourteenth, from the action of the court in refusing the motion •of 'the appellant to strike out the order for extra work, being plaintiff’s exhibit No. 3, and the fifteenth to the rulings of the court on the prayers.

We are now asked to review and pass upon the correctness of the rulings of the lower court as contained in these exceptions. The contract of April 17th, 1918, between the appellant and appellee, recited in the preamble the making of the original contract of December 1st, 1916, 'between the appellant and the Amiesite and Stone Company, for the construction os' improvement of the Mike’s Quarter Road, in Howard County, after all of the necessary preliminaries had been complied with; that bond was furnished by the original contractor, upon which bond the United States Fidelity and ⁵⁵⁹ Guaranty Company was surety; that the Andesite and Stone Company had, for some time prior to April 17th, 1918, been in default; that the County Commissioners, in accordance with the provisions of paragraph 17 of the specifications forming part of the original contract, formally declared the said original contract and agreement to be in default; that after complying with the terms of the .original contract in case of default, and pursuant to the authority set forth in said paragraph 17, the County Commissioners had sublet the contract for building said road to Charles T. Matthews, the appellee; and continued by providing as follows: “Now this agreement witnesseth in consideration of the payments hereinafter specified to be made by said County Commissioners to the said ‘contractor,’ as well as in consideration of the agreements, terms and conditions mentioned and referred to in the payments and specifications for the building of said road as set forth in contract No. 453, of the State Roads Commission of Maryland, which plans and specifications are hereby expressly made part and parcel of this agreement by reference thereto as fully as if the same were set forth herein in full, the said contractor does hereby agree with the County Commissioners aforesaid, that he will well and faithfully build and construct said section of said highway, in accordance with each and every obligation, stipulation, term and, provisions contained in said specification herein referred to at and for the sum equal to the agreed price of work, labor and supplies, done and furnished at tbe prices and rates named therefor in the proposal attached to said specifications, and well and faithfully comply with and perform each and every obligation imposed upon said contractor by said specifications, or the terms of said award. “And the said County Commissioners of Howard County in consideration of the premises do hereby agree with the contractor that they will pay to the contractor when and as due and payable under the terms and provisions of said specifications and award fifty per cent, of the above mentioned sum; that they will well and' ⁵⁶⁰ faithfully comply with and perform each and every obligation imposed upon them by said specifications and the terms of said award; and the State Roads Commission hereby agrees, as evidenced by its approval hereof, to pay to the contractor by the issuance of warrants upon the Comptroller of the Treasury of the State of Maryland, when and as the same are due and payable under the terms of said specifications and award, the remaining fifty per cent, of the above mentioned sum, and that it will well and faithfully comply with and perform each and every obligation imposed upon it by said specifications or the terms of said award and in accordance with the provisions of Chapter 217 of the Acts of the General Assembly of Maryland passed at its January session, 1910. “In witness whereof the' parties .to these presents have hereunto set their hands the day and year first above mentioned, in triplicate. “Chas. T. Matthews. ’“Witness: H. C. Hines, Jr. '“The United States Fidelity and Guaranty Company, surety on the bond of the Amiesite and Stone Company referred to herein, hereby assents to the above ^contract.” Tt will be noted, that while this contract was by and between the -appellant and appellee, the State Roads Commission agreed to pay to the appellee its portion of the cost, as evidenced by its approval of the contract, and the United 'States Fidelity and Guaranty ’Company, the surety on the bond of the Amiesite and Stone Company, formally assented thereto-. The first contention of tire appellant is that the new or substituted contract of April 17th, 1918, made with the ap-pellee, is void, because the provisions of chapter 217 of the Acts c-f 1910, which contains all of the authority given to the appellant to- make a contract for the construction or improvement of a state aided road, and within the terms of which said act must be found the grant of powers which may ⁵⁶¹ be legally exercised in that respect, were not complied with, in that: (a) Said new contract was not awarded to the lowest responsible bidder; and, (b) that no bond for the faithful performance of the contract was exacted or required of tire .appellee, the substituted contractor.

Baltimore City and the counties of Maryland are public political territorial divisions of the State, established for public political purposes connected with the administration •of the government, possessing the character, and endowed with the powers, of corporations, according to the laws severally applicable to them. They are mere instruments of government, appointed to aid in the administration of public affairs, and are parts of the State. As public corporations they are to be governed according to the laws of the land, and are subject to the control of the .Legislature. Regent’s Case, 9 G. & J. 397 -401; State v. B. & O. R. R., 12 G. & J. 399 -439; Baltimore v. State, 15 Md. 462 .

Counties are political divisions of the State, organized with a view to the general policy of the State, and the functions and powers exercised by them have reference mainly to such policy, which general State policy is, when applied to a particular county, modified and adjusted so as to meet the local conditions and best serve the needs of people resident within its territorial boundaries. Counties, like municipal corporations, can only exercise such powers as are expressly granted by the State, together with such implied powers, as are necessary for the execution of the powers expressly granted. Officers of a county are public agents of limited powers,, and cannot bind the public by their acts in excess of the delegated power, nor can an expressly delegated power be exercised in a manner contrary to the mandatory language of the enabling statute. The rule relieving municipal corporations