A contract made with a county court for services to be rendered the county must be in writing subscribed by the parties thereto with the consideration state therein and entered on the records of the county court.

COUNTY COURT : COUNTY CLERK: PAYMENT OF WARRANTS: COUNTY RECORDS: A contract made with a county court for services to be rendered the county must be in writing subscribed by the parties thereto with the consideration stated therein and entered on the records of the count y court . February 8, 1962 Honorable Earl R. BlackWell St ate Senator, 22nd District Hillsboro, Missouri Dear Senator Blackwellt In your letter of October 16, 1961, you request an opinion from this office regarding the matter set forth in a letter you enclosed, which letter reads as follows: "Recently the County Clerk of Jefferson County present ed a atatement to the Court for services which he performed for the Court, and at the request of the Court; however, a question has been raised concerning the authority ot the Court to honor the statement ot the County Clerk. "The Court would like for you to obtain an opinion from the Attorney General based on the following tactsz On November 8, 1960 the voters of Jefferson County, tJ majority, voted favorably for the Proposition of Local Option Registration of Voters, as provided by Chapter 114 RSMo 1959, and with this mandate in mind, the same to become operative st arting September 15, 1961, the County C ~urt did on Dec- ember 19, 1960 enter the following order in the County Court Record Ho. 20 at Page 383: Honorable Earl R. BlackWell "BLKCTIC*S Dividing Townships for Voters Registration Sec. 111.220 and 114.110 RSJio 1959 low on thia day the Court orders the Clerk to divide the several Townships into election precincts with fixed boundaries for each precinct. "And, in accordance with said Order, the Clerk proceeded to divide the seven Towna~pa of Jefferson County into election precincts, empla,ing aa fixed boundaries the center linea of County and State Highways, Creeks and Rivera, RAilroad Rights of Way, and in aome instances, section and Survey linea. "Diligently applying hie effort to this project, during after-office hours, on Sundays and Holidays, and during his vacation period, and by attending fifty-eight organization m.eetinga in the County in search of •US~eationa by the various organiza- tions for equitable distribution of precincts in each Townahip, the Clerk did on or about September 1, 1961 submit to the County Court seven master mapa of the aeven Townships of the County defining sixty-two precincts with fixed boundaries encompassing each precinct. "The County Court, after viewing said Township mapa accepted same aa the official precinct maps of the County, an4 starting on September 15, 1961, the County Clerk employed the aame maps in registering vote~u in the sixty two precincts in the County. "Later, on or about September 29, 1961 the Clerk presented a statement to the County Court for his services in dividing the seven Townships ~to aixtf-two elec- tion precincts in the sum of f3300, which statement was approved for payment by the Presiding Judge and the Associate -2- Honorable E~rl R Bla c~al l Judge of the 2nd D1atrict; the Associate Judge of tbe let District declined to vote. "The Presiding Judge signed Warrant Mo. 1158 for payment of said etatement to be paid from the Registration and Bleotion category or the 1961 Budget, where ample funds are available but the County Auditor has retuaed to ap- prove said Warrant for payment without a legal opinion from the Attorney General of Miesour1. "QUERY NO. ls Does the County Court have the authority to expend County funds for work delegated by a County Court order to the County Clerk in accordance with the provisions of Section 111.220 RSMo 1959, and as a part of the program for Registration of Votera aa ~rovided by Chapter 114 RSMo 1959?" In substance, it 1s stated in the letter that on Nov- ember 8, 1960, the voters of Jefferson County voted favorably for county-wide registration of voters aa provided for under Chapter 114, RSMo 1959. On December 19, 1960, the county court of Jefferson County entered the following order in County Court Record No. 20, page 383: "ELECTIOHS Dividing Townships for Voters Registration Sec. 111.220 and 114.110 RSMo 1959 Now on this day the Court orders the Clerk to divide the several Town- ships into election precincts with fixed boundaries for each precinct ." It is fUrther stated that in accordance with aaid order the county clerk of Jefferson County proceeded to divide the seven townships of Jefferson County 1nto election precincts employing as fixed boundariea the center lines of county and state highways, creeks and r1vars, railroad righta-of·way, and in aome instances sections and survey linea. After -3- Honorable Karl R. BlackWell attending many meetings in search of suggestions trom various organizations for equitable distribution of precincts in each township, he prepared seven master mapa of the county, defining sixty-two precincts with fixed boundaries, and that the county court a~ter viewing the mapa accepted the aame, and theae maps were used later for registering voters . There- after on September 29, 1961, the count1 clerk presented a statement to the county court for $3300.00 for his services in dividing the seven townships into precincts, which state- ment waa approved for payment by the presiding Judge and one associate Judge. It is further stated that the county audit or has refused to approve the warrant for payment. It must be observed t hat th1a matter concerns an obliga- tion created by a county court 6nd ita validity must depend upon statutory authority. Section 431.100, RSMo 1959, provides as follows: "If a claim &g$inat a county be f or work and labor done, or material furnished in good faith by the claim- ant, under contract with the county authorities, or with any agent or the county lawfully authorized, the claim- ant, if he ehall have fulfilled hla contract, ahall be entitled to recover the just value of such work, labor and mater1&1, though such authorities or agent ~Y not, in making auch contract, have pursued the form or proceedings prescribed by law. 11 Section 432.070, RSMo 1959. provides: "No county, city, town, village, school townahip, school di strict or other municipal corporation shall make any contract, unlesa the aame shall be within the scope of ita powers or be expreaaly authorized by law, nor unless such cont ract be made upon a conaidera- t1on wholly to be performed or executed subsequent to the making of the contract; and such contract, including the con- sideration, ehall be in writing and dated when made, and eball be aubacribed by the parties thereto, or their agents authorized by law and dul1 appointed and authorized in writing." -4- Honorable Earl R. BlackWell Attention 10 called to the fact that Section 431. 100, supra, applies only to claimo again$t the county under a contract with county authorities while Section 432.070, supra, appliea t ·o count ies, c1t1es, school districts, and other municipal corporations. This fact should be kept in mind when construing the holdings made in caBes cited in this op1n1on. Theae atatutes cited above have been before the courts of thia atate many times f or construction, both in cases involving counties as well aa cities. In Woolfolk vs . Randolph County, 83 Mo. 501, the court had before lt a situation where the county court by proper order of record had appointed plaintiff as ita acent for ant1 on behalf of said county to compromise and settle the bonded i.ndebtedneaa ot Sugarcreek Township in Randolph Count)'. By the terms ot uaid court order plaintiff wao to receive a reasonable compen•ation for h1B services. Plaintiff perfo~d the aervices and presented hls bill to the county court amounting to .700.00 . The Supreme ~ourt held in this case that plaintif f was not entitled t o recover because the above statutory provieions had not been complied with . The court stated# l.c . 506: "The petition suf'Tieiently discloses, we 1ihink, that the contract sued on did not meat t he reqUlrements of t he statute, that i~ was not in writing, dat ed and aigned, as required, and that the value of plaintiff's services wa& not agreed upon. The allegation is, that plaintiff was to have a reaaor~ble compensation, which is the compensat ion the law would ordinarily attach where the parties rail to make a contract price, and th1a, we think, for the reasons' given, was not a compliance with the statute, in th1a e saential particular. •• In the case of Carter vs . Reynolds County, 288 s.w. 48, the presiding Ju~e of the county court of Reynolds County met With plaintiff, an e1per1enced bridge bui lder, at a bridge site and orally agreed with plaintiff' on how the work should be done in con5truct ing a br ldge . CompenltJ8t1 on to be paid for the work was agreed upon subject to the ep~roval of the county eou.rt. Thereafter the county court made an order of record that tbe county would pay or contribute a sum not to exeeed five hundred dollars after completion and approval by the county court of' such work. Thereafter the presiding Judge wrote plaintiff a letter stating the court had made an -5- Honorable Earl ft. Blackwell order to pay five hw1dred dollars when the work waa completed and approved by the court, and further stated that it this arrangement was satisfactory with plaintiff that he could proceed with the work. Plaintiff did perform the work and presented his bill for services, which was refused tor payment. After quoting the above cited statutory provisions the Supreme Court made the following st atement, l.e. 50t .,[1-4] '£hat the evidence wholly tails to show a contract between plaintiff and Reynolds county conforming t o the requirements of section 2164 1s manifest. Confronted with this situation, appellant placP-a h1a reliance on section 9507. But before this latter section can avail ~ ~ he must show that the work and labor was done, and the material furnished, under a contract w1th the county. What is the proof of the existence of a contract? The parol evidenco must be eliminated. A county court oan speak only by its record; and this is true with reference to all ita acts, whether J~dicial or ministerial. Riley v. PeU1a County, 96 Mo. 318, 321, 9 S.W. 906, sanderson v. Pike County, 195 Mo. 598, 604, 93 s.w. 942; Harkreader v. Vernon County, 216 Mo. b96, 706, 116 S.W. 523. The l etter written by Judge George ~a not a r ecord of the county court; it is the merest hearsay. The only competent evidence offered on the i~eue of contract or no contract waB the record entry of an ·order of the county court. From that order 1t appears that the county offered to •contribute not to exceed $500 after com- pletion and approval of the county court' or •aometh1ng * * * to change the flow of water in Blaek river at the Carter's Mill bridge.• This offer waa eo va3ue and in- definite that lt could not be made the bas1a or an enforceable contract. Certainly proof of it does not tend to eatabliaa the contract pleaded. " [ 5 ] ~orge • G ag;re.ement wi tn the plaintift' was not binding upon Reynolds county. He waa not an agent of the county 'duly ap- pointed and authorized in writing ' ; being merely a member of the county court d1.d -6- Honorable Earl R. Blackwell not conBt1tute hlm an 'agent authorized by law• to make contracts for t he county. If all three of t he Judges of the county c-ourt had separately agreed with plaintiff that t~1e county would pay him $500 f or driving piling in Black river, the county would not be bound. They could act f or and obligato tha coanty only when sitting as the county court . Crutchfield v . Warrensburg, 30 lto, App. 456; Board or Comm1aa1oners of Caes County v. Ross, 46 Ind. 404; McDonald v. Mayor, 68 N.Y. 23, 23 Am .Rep. 144; Butler v. City of Charlea- ton, 7 Gray (73 Ma3e.) 12. "[6] The cnuse or action pleaded in the &econd coun~ of the petition 1a on a quantum meruit. The atatute, in pre- scribing t.ho mode by which alot'l.e a county can obligate itsslf b~ contract, net3at1vee the idea of a prom1Ge on its part arts1ng by implication of law. The defendant can- no~ bu held as on aa impl ied contract . Crut chfield v . arren3burg~ supra; Hill side Seaur1t1ea Co. v. I~nter, 300 Mo. 380, 254 ::~. . w . 188 . " In the case or Cook v~ . St . Francois County, 162 s.w. 2d 252, the Supre.ue Court ha<i before it a s1tU3.tion where St. Francois County- had ntade the following order of record on February 20, 1939, which reads as follows> l.c. 253: "'In the matter of the appointment of r~s . Blanche Cool(, .County Health Nurse. "•Now on thls day lt is ordered by the court that Mrs. Blanche Cook, of Flat River, Mo. , be and 1a, hereby appointed County Health N~so at a aalary of $200.00, per month .L"rom October l at, to June 1st, and $150.00, per month from June let, to SaA.)tembar 1st. " 1 It is further ordered that apr. ointment to go in effect March 1, 1939.•' On March 27, 1939, at Lhe same term of aourt the eounty court made of reooz'd another order revoking and setting aside the prior order of' appointment for reasons st ated in said order. ApparentlY Mrs. Cook waa pal~ her sa1ar1 ror the month of March but was not paid thereafter. She then brought -1- Honorable Earl R. Blackwell t his action to recover her sala~ from April, 1939, until September, 1939, relying upo. the agreement she had with the county. In deciding thls :nattel" the Supreme Court made the f ollowing stateme t, l .c. 254: "[2] If appellant 's cause of action rests upon a contract or employment, she 1s barred 1'rora .recovery by So<.:tiou 3349, Revised Statutes H1ssour1 1939., Mo. B.S.A. § 3349, which r·equir ea suoh a contract to be ir1 writing and subscribed by the parties. The county court spread its Ol'O.er t.&pon t.he recox•d, but appell&nt filed no writ~en acceptance of the order. On her part t he cont ract, 11' any, was oral." In the ca~ of s~ . Francois County Vb. Brookshire, 302 s.w. 2d 1, the dafcndant lwd been emplo~ed a6 an attorney to represent " ~~t county cour~ 111 a oonter p\. proceeding brought against the members of the cour·t in th~ clrcuit court, and later the def endant represented tlte n.au tera of the court in a habeas corpus proceedlng in the court of appe~ la. The members or tie count) court orall~ employed the defendant to represent t.he • Defendant per!orc-,ed hie services and wae paid a fee of six hundred dollars by t he count~ for services rendered. Abc;,ut !'our )ears later the county br ought suit against the &efendat,t to recovar t t a aix hundred dollars that had been pald h.lm ot& the tlle o~~ t he no 11 · y h.ad been illegally paid for the x-eason that. the services he rendered t o the members of the court were servioea rendGrod to them as individuals. After holc.l.lng the county court had no autho.-1ty to employ defenda-nt as an att01•r1ey ro1 .. tl1<: county under the circumstances of ·t..nls case4 tho Suprame CoUl"t then made the following ~tateruent, l.c. : 11 [6 .. 7] Ther e is an additional l'eason .my tho purported employment of defend- a t .in tn1s case by the coWlty wa::s not authorized an<i \.he p&Ylf~ent. of hio fee tlaa in viola tior, of law. vie cieaJI J. t advisabl~ t o corument. upon the ntat~.~ur even thoug J i t is not tuentloned by either part~ ~n the pleadings or briei's. Sectiion 432. 070 Pl"OV ldca t.slilt ' No county , city, • • * or other muni- cipal corporat ion shall rnake any conlir&ct, unleus the same ob.all be w1~hin the a~ope of i t s powcro or be expressly authori aed by law, • * • and such contract , i ncl uding the consi- deration, shall be in writing and dated -8- Honorable BaPl ll. BlackWell when made, • * *•' It is defendant's contention that the arrangement between h1m an~ the members of the county court constituted a co~tract of employment, but there 1& no contention that this contract, including the consideration, · was in writing. The evidence establishes the contrary. the requi~ements of Sec- tion 432.070 tM,t t ·he ternus (tf tbe contracts therein mention&d be 1n writing 1& mandatory and not m•relJ directory, Donovan v. ltansas Citl, lliaa.our1, 352 Mo. 430, 175 S.W. a4 874(10}, 179 S.W. 2<1 108, and a verbal contract in viola- tion Of thiS atatutOrJ prOV18~0n 18 VOid ab initio end cannot be rendered valid after the services are performed or work done. Pleehner v. &ansae City, Miaaou~, 348 Mo. 978, 156 s.w. 2d 706 ( 3]; Likes v. City of Rolla, 184 Mo. App •. 296, 167 s.w. 645 (1}. One 4eal1ng with a muni- cipal or county government rnuet take notice of the limitations on the p-ower and authority of the representatives with whom he deals, Arbyrd Compress Co. v. Citi or Arbyrd, Mo. App., 246 s.w. 2d 104{4), and one or those 11m1tat1one is the lack of authority to enter into an oral centract • . ln tl\1a case the emplqy; ... ment o£ defenda~t Jl8 a~KorneY for t-he C2l.UltX ••• not within e aoor ofFthe owera _(Jr tFie· count court . n waa not aut or se a · ut even _ · .. en, · e con ract o e! ofm,en . wou d a;g~g}a~n void ... l,p. v!oat<on o? Sioii,on In State va. Miller, 297 s.w. 2d 611, two of the county Judges had alreat,iy agreed with plaintiff to pay him $500 for earth mov10J and conetruetion work for Andrew County, Missouri. This agreement waa made When the county court was not in session and no entr¥ of 1t waa made on the records of the county court until several daya after the agreement was made and at a time when the c~urt waa not in aeaa1on. Platntiff performed the work and preaente4 his bill for aervicea, which was approved by ·two JudSes, but the prea1d1ng Judge refused to sign a warrant. This procee41ng was in mandamus to compel the presiding judge to sign the warrant. In this proceed1Jl& pl.aintif£ contended that the agreement ••• made by a maJority or the county judges ana that he, having performed the ... 9- Honorable Earl R. BlackWell services in good faith, 1s entitled to recover for his work even though the contract waa not executed in the form pre- scribed by law and was not in writing, relying on the provisions of Section 431.100. In holding that plaintiff waa not entitled to recover, the court stated, l.c. 614: "[1,2] How do the foregoing facta con- form to the requirements prescribed by the law to safeguard the funds or t he county? In the f1rat place the law re- quires aueh contracts to be in writing. Section 432.070. Absent the required writing, such contracta 'have been held void and performance by the other party ineffectual to create legal liability on the political subdivision on the theory or ratification, estoppel or 1mpl1ed contract [citations].• Blkina- SWyera Office Bquipment Co. v. Moniteau County, 357 Mo. 448, 456, 209 s.w. 2d 127, 131. Seet also, Carter v. George, 216 MO.App. 30ti, 264 S.W. 4634· CoOk v. St. Jrancois CoWlty, 349 Mo. 84, 162 s.w. 2d 252, 254; Missouri-lanaaa Chemical Co. v. Christian County, 352 Mo. 1087, 18o s.w. 24 735, 736. One dealing with the county ia deemed to know or such restrictions imposed by law on such tranaaetiona. Riley v. City of Rock Port, MO. App., 165 S.W. 2d 880; tiillaide Securities Co. v. Minter, 300 Mo. 380, 254 s.w. 188, 193." The court further atatea, l.c. 615: "[5] Aa to Walton•• right to recover under Section 431.100, aaauming he per- formed the work 1n good faith, it haa been held that that aection applies only to proceedings •where the parties have not followed the required form of pro- cedure in executing a contract• with the county and •artords no relief where the parties have failed to follow the condi- tione 1mpoaed upon the making of a contract'. Missouri-Kansas Chemical Co. v. Christian County. supra. At page 737 of 180 s.w. 2d, the court further sa1da -10- Honorable Earl R. BlackWell 'We have held that this section does not give the claimant a right to recover where he has performed under a contract with a county off~cial it auch otf1e1al 1e not authorized by law to make t he contract • .u Mention should be made or the caae of Burger vs. City of Springf.ield, 323 s.w. 2d 777. In this case the City Council or Springfield, Missouri, by resolution duly enacted and signed by its Mayor, authorized the waterworks committee to employ a suitabl e person to represent the city in negotiating the purchase or the waterworks, a private company, at a reasonable compensation for services and expenses to be fixed by the City Council upon completion of the services. The Mayor, who waa alao a member of the waterworks committee, wrote the plaintifi" a letter enclosing a copy of the resolution or t ne City Council and informed him that he had been appointed to represent the city at a reasonable fee, to be determined after the work was completed. Plaintiff 1>7 letter accepted the appointment aa the negotiator tor the city. The plaintiff was able to successfully negotiate the purchase of the water company for several million dollars lese than the original &eking price . Thereafter the city refused t o pay plaintiff tor hia services and auit waa instituted on the contract. In disposing or the case the court stated, l.c. 781: "It appears{ therefore, that the contract aued on In hie case waa !n writ!~ . '1'hi resolution in question waa pleade~ The reaolution is alleged to have been' duly adopted by the City Council, approved by the ~ or and duly signed, and a copy waa attached to the amended petiti9n. Notification of appointment and acceptance tllereot were alleged to have been in writing and copies or the signed letters were attached. The rormal execution of the contract was sufficient. Only the sufficiency of the written provision of the documents appear to be in question. •• (Bmphaaia supplied) The offer of the city waa made 1n writing and it was accepted in writing. The court held th1a conat1tuted a written contract. The only question was whether the written provisions in the contract that the city would pay "a reasonable compensation" complied with Section 432.070, which required the consideration to be 1n writing. The court 11 - Honorable Earl R. BlackWell held the written contract stated the consideration and did comply with this statute . In the instant matter there is no contract in writing between the parties and consequently no consideration 1a stated. It is appaNnt from the cases cited herein that recovery cannot be had under Section 431.100 unless it is founded upon a written contract with a stated consideration and signed by the parties thereto. It is apparent from the cases cited herein that liability on tbe county can be created only by a written contract under Section 431.100, s~ra, or under Section 432.070, supra, and that Section 431 .100 applies only when the parties have executed a written contract but may not have followed the required rormal procedure leading up to the execution of a written contract . We also belie~e that the above cited eases are authority for holding that the written contract must state the eonaideration and be subscribed by the parties thereto and entered upon the recordu or the county court . Under the tacta ~bmitted in the present matter there was no contract in writing subscribed by the parties thereto and entered upon the records ot the county court. The one-sentence ent~ made by the county court on the court records does not constitute a written contract as required by statute . COMCLUSIOH I t 1a our op~on that under the facts sUbmitted herein the agreement made by the county court with the county clerk aa stated herein does not create a valid legal obligation on Jefferson County due to the tact that it was not in writing with the consideration stated therein and was not subscribed by the partiea and entered on the recorda of the county court aa required by the law. The forego1ll8 opinion, which I hereby approve, was prepared by my assistant~ Moody Mansur. MM:BJ Yours very truly, 'Mt<RAS P. EIOLIT&¥ Attorney General