until a demand of satisfaction of the board of trustees, such demand and a refusal of satisfaction must be averred by the plaintiff in such an action. 11

1 See Davis v. Mayor etc. 1 Duer, 451; 9 N. Y. 263; S. C. again, 2 Duer, 663: § 46, ante.

2 See McCracken v. San Francisco, 16 Cal. 591; Lincoln v. Worcester, 8 Cush. 55: Bennett v. Buffalo, 17 N. Y. 383; Richmond v. Long, 17 Gratt. 375; Green v. Mayor etc. 5 Abb. Pr. 503; 8 id. 25; Taylor v. Mayor etc. 82 N. Y. 10.

3 Winslow v. Perquimas County, 64 No. Car. 218; and see Herzo v. San Francisco, 33 Cal. 134; Lemington v. Blodgett, 37 Vt. 215.

4 Heywood v. Buffalo, 14 N. Y. 534; State v. Jersey City, 1 Vroom, 521; Intendant e. Pippin, 31 Ala. 542; Hannewinkle v. Georgetown, 15 Wall. 547; Oakland v. Carpentier, 13 Čal. 540.

5 Bond v. Newark, 19 N. J. Eq. 376; Dows v. Chicago, 11 Wall. 108; Whiting v. Boston, 106 Mass. 89; and compare People v. Ingersoll, 58 N. Y. 1; 17 Am. R. 178; People v. Fields, 50 How Pr. 481; Tifft v. Buffalo, 65 Barb. 460; Phelps v. Watertown, 61 id. 121; tit. INJUNCTION. As to remedy by mandamus: see tit. MANDAMUS; by certiorari: Ewing v. St. Louis, 5 Wall. 413; Whiting v. Boston, 106 Mass. 9; St. Paul v. Marvin, 16 Minn. 102; Cunningham v. Squires, 2 W. Va. 422; Stater. Dowling, 50 Mo. 134; People v. Ogdensburg. 48 N. Y. 390; State v. Donahay, 1 Vroom, 404; Mayor etc. v. Shaw, 16 Ga. 172; Carroll v. Mayor etc. 12 Ala. 173; by writ of prohibition: Zylstra v. Charleston, 1 Bay, 392; Warwick v. Mayo, 15 Gratt. 528; Clayton v. Heidelberg, 9 Smedes & M. 623; by indictment: State v. Mayor etc. 11 Humph. 217; Commonw. v. Hopkinsville, 7 Mon. B. 38; Davis v. Bangor, 42 Me. 522; Bragg v. Bangor, 51 id. 532; State v. Hudson County, Vroom, 137; Phillips v. Commonw. 44 Pa. St. 197; State v. Dover, 46 N. H. 452.

6 Brown v. Mayor etc. 66 N. Y. 385.

7 Hawthorn v. St. Louis, 11 Mo. 59; Merwin v. Chicago, 45 Ill. 113; Baltimore v. Root, 8 Md. 95; Wilson v. Lewis, 10 R. I. 285; Burnham v. Fond Du Lac, 15 Wis. 193; People v. Mayor etc. 2 Neb. 166; Jenks v. Osceola Township, 45 Iowa, 554; Merrell v. Campbell, 49 Wis. 535; 35 Am. R. 785; Contra: State v. Horton, 38 N. J. L. 88; and compare Pendleton v. St. Louis, 49 Mo. 565.

8 Ward v. County of Hartford, 12 Conn. 404; Erie v. Knapp, 29 Pa. St. 173; Moore v. Mayor etc. 8 Heisk. 850; Memphis v. Laski, 9 Heisk. 511; 24 Am. R. 327; Hadley v. Peabody, 13 Gray, 200; Triebel v. Colburn, 64 Ill. 376; Wallace v. Sawyer, 54 Ind. 501; 23 Am. R. 661. But see Rod man v. Mussellman, 12 Bush 354; 23 Am. R. 724.

9 Edgerton v. Municipality, 1 La. An. 435. 10 New Orleans v. Ins. Co. 23 La. An. 61. 11 Yolo County v. Sacramento, 36 Cal. 193. And no action will lie against a municipal corporation upon a contract which is ultra vires: Sinith v. Buffalo, 1 Sheld. 493; 19 Abb. L. J. 397.

§ 314. Nature of counties.-Counties are political divisions of the state, organized as a part of the machinery of government for the performance of functions of a public nature. They are quasi corporations only,2 and they are invested with but limited corporate powers. They

are creatures of legislative will, and the legislative power over them is supreme, except as restrained by the constitution.5 Thus, the legislature has power to enlarge or diminish the area of counties as expediency may demand; " and it may abolish them whenever necessary in changing county lines, or in creating new counties." And the law governing a county may be modified at any time according to the will of the legislature.

6

1 Barton County v. Walser, 47 Mo. 189; Maury Co. v. Lewis Co. 1 Swan, 26; Laramie County v. Albany Co. 92 U. S. 307; Granger v. Pulaski, 26 Ark. 37. Compare Smith v. Myers, 15 Cal. 33; People v. Super. visors etc. 45 id. 692.

2 See § 10, ante; People v. Ingersoll, 58 N. Y. 1; 17 Am. R. 178.

3 Reardon v. St. Louis Co. 36 Mo. 555; Ray Co. v. Bentley, 49 id. 236; Goodnow v. Comm'rs etc. 11 Minn. 31.

4 Laramie Co. v. Albany Co. 92 U. S. 307; and see Guilder v. Dayton, 22 Minn. 366.

5 State v. McFadden, 23 Minn. 40; State v. Comm'rs etc. 12 Kan. 426; and see Wade v. City of Richmond, 18 Gratt. 583; State v. County of Dorsey, 28 Ark. 378.

6 Laramie County v. Albany County, 92 U. S. 307; Sedgwick County . Bunker, 16 Kan. 498.

7 Division of Howard County, 15 Kan. 194; Opinion on Township Organization, 55 Mo. 295.

8 Freeport v. Supervisors etc. 41 Ill. 495.

§ 315. Property of counties.-Counties have power to take and hold real property necessary and useful for county purposes. But a grant of a lot of land by an individual, to "the people of" a specified county, not incorporated, is void.2 The public property of counties is held for public use, in subordination to the sovereign power of the state as exercised by the legislature.1 And when a county is divided, the rule for the division and apportionment of the debts and property, between such county and the detached territory, belongs exclusively to the legislature, and not to the courts.5 If no provision is made for the apportionment of property and debts, the rule is, that the old county continues owner of its property, and liable for its debts, as they existed at the date of the change. Records of conveyances in a county clerk's office are not corporate property of the county, and the

clerk, in keeping them, does not act as agent of the county; and the county board of supervisors have no power to interfere with the clerk's possession of such records, and cannot authorize any person to use them to make indexes, or otherwise, in hostility to the clerk.8

1 Hayward. Davidson, 41 Ind. 212; Supervisors etc. v. Paterson, 56 Ill. 111; People v. Ingersoll, 58 N. Y. 1; 17 Am. R. 178.

2 Jackson v. Cory, 8 Johns. 385; Jackson v. Hartwell, id. 422. Com. pare Goodell v. Jackson, 20 Johns. 706; Bow v. Allenstown, 34 N. H. 351. A devise of a permanent fund for educational purposes, to the county of (desiguating name). "in the State of," etc., is sufficiently definite: Craig v. Secrist, 54 Ind. 419.

3 Stone v. Charlestown, 114 Mass. 214; Smith v. Leavenworth, 15 Kan. 81; People v. Ingersoll, 58 N. Y. 1; 17 Aın. R. 178.

4 People v. Ingersoll, 58 N. Y. 1; 17 Am. R. 178.

5 Sedgwick County v. Bunker, 16 Kan. 498.

6 Hampshire v. Franklin, 16 Mass. 76; Laramie County v. Albany County, 92 U. S. 307.

7 People v. Nash, 3 Hun, 535.

8 People v. Nash, 3 Hun, 535.

§ 316. Powers of county board.—A board of county commissioners, being a corporation,1 have no powers except such as are conferred by statute.2 Such board is deemed the representative and the guardian of the county, and is clothed with the management and control of its financial interests. And the same good faith toward the county is required of commissioners or supervisors as of an ordinary trustee toward his cestui que trust, or of an agent towards his principal. But in matters pertaining either to police or fiscal regulations, they are allowed to perform such duties as may be enjoined upon them by law, without any nice examination into the character of the powers conferred.5 And the manner in which a county board, acting in good faith, has exercised a discretion confided to it by law cannot in general be made the subject of revision by the courts.6 A county board cannot act until it has been convened in legal session, either regular, adjourned, or special. And if the general law prescribes the mode of calling a special meeting, the requirements must be observed, or the meeting will not be

legal. But although a statute fixes certain days for the meetings of county commissioners, this does not preclude them from transacting business on other days.9 A county board has discretionary power to amend its records upon new evidence; 10 and it may amend them in accordance with the facts, at any regular meeting of the board.11 The record, as to matters acted upon by the board within its jurisdiction, cannot be impeached collaterally, but is conclusive upon all parties in an action at law.12

1 See Pegram v. Cleaveland County, 65 No. Car. 114; Sterling v. Parish of Feliciana, 26 La. An. 59.

2 State v. Clark, 73 No. Car. 255.

3 Shanklin v. Madison County, 21 Ohio St. 575.

4 Andrews v. Pratt, 44 Cal. 309; and see State v. Clarke, 73 No. Car. 255; Supervisors etc. v. Wandell, 6 Lans. 33.

5 State v. Ormsby County, 7 Nev. 392.

6 Long v. Commissioners etc. 76 No. Car. 273; Andrews v. Super visors etc. 70 Ill. 65; and compare Supervisors etc. v. Gorrell, 20 Gratt. 484; Matter of Saline County, 45 Mo. 52.

7 Paola etc. R. R. Co. v. Anderson County, 16 Kan. 302.

8 Goedgen v. Supervisors etc. 2 Biss. 328; Paola etc. R. R. Co. v. Anderson County, 16 Kan. 302.

9 People v. Green, 75 No. Car. 329.

10 Gloucester v. Commissioners etc. 116 Mass. 579.

11 Dresden v. Commissioners etc. 62 Me. 365.

12 Brewer v. Boston etc. R. R. Co. 113 Mass. 52. See Wigginton v. Markley, 52 Cal. 411.

§ 317. Contracts of counties.-Contracts on behalf of counties, within the scope of their powers, may be made by their officers or agents, as is allowed by law in the case of other corporations;1 and may be in writing or by parol, according to their nature.2 But, as a general rule, county commissioners or supervisors can only contract on behalf of the county by an official act of the board as such, when in session according to law;8 though an offer previously made may be ratified by the board, at a legal session, and the county thus rendered liable. Thus, the board of supervisors may offer a reward for the recovery of money which has been stolen from the county,5 and this may be done by ratification of an offer made while the board was not in session.

And

the county may become liable upon a use of property furnished pursuant to any oral orders for its value. A county having power to grade and improve its public roads may enter into contracts therefor, and issue warrants in payment.8 An account for articles of furniture necessary to properly equip and furnish the county jail, purchased by direction of the board of supervisors, is a proper county charge." County commissioners may sell shares of stock owned by the county in a railroad company; 10 and in Pennsylvania, they are the sole representatives of the county in making contracts for bridges, and in all proceedings relating to bridges." But they have no power to contract for boring oil wells, or sinking coal shafts, either alone or in partnership with others.12 And, in general, county authorities cannot appropriate the funds of the county for objects not authorized, either expressly or by implication, by the state legislature.18 And in the absence of any unusual powers of administration, the representatives of a county have no implied authority to issue negotiable securities, payable in future, so that equities cannot be set up against them in the hands of bona fide holders.14

1 Montgomery County v. Barber, 45 Ala. 237; Ellis v. Washoe County, 7 Nev. 291; Commissioners etc. v. Rhoades, 26 Ohio St. 411; Babcock v. Goodrich, 47 Cal. 488; Hopkins v. Clayton County, 32 Iowa, 15. See § 44, ante.

2 Ring v. Johnson County, 6 Iowa, 265; Montgomery County v. Barber, 45 Ala. 237.

3 Potts v. Henderson, 2 Ind. 327; Commissioners etc. v. Ross, 46 id. 404; McCabe v. Commissioners etc. id. 380; Rice v. Plymouth County, 43 Iowa, 136; Crump v. Supervisors etc. 52 Miss. 107.

4 See Mitchell v. Commissioners etc. 18 Kan. 188; Clarke v. Lyon County, 7 Nev. 75; Talbott v. Parish of Iberville, 24 La. An. 135.

5 Hawk v. Marion County, 48 Iowa, 472. And compare State v. Freeholders etc. 37 N. J. L. 254.

6 Hawk v. Marion County, 48 Iowa, 472.

7 Crump v. Supervisors etc. 52 Miss. 107. Compare Reichard s. Warren County, 31 Iowa, 381.

8 Long v. Boone County, 32 Iowa, 181.

9 Schenck. Mayor etc. 67 N. Y. 44. See People v. Supervisors etc. 30 How. Pr. 173; Mitchell v. Commissioners etc. 18 Kan. 188.

10 Shannon v. O'Boyle, 51 Ind. 565.