(256 F.) was disposed of by a most able and instructive opinion. It calls attention to the fact that it has been declared by the Alabama courts that the board of revenue is the repository of the authority and jurisdiction, whether legislative, judicial, or executive, committed to the county, and that this body is entitled "a court of record." Authorities are cited, and the conclusion reached that, in the several matters committed to them, the county board exercises a discretion that cannot be exercised for them, and that, in the performance of such duties, they exercise a function that is quasi legislative, and that their acts in this behalf, when free from fraud, corruption, or unfair dealing, cannot be controlled or reviewed by any other court. From these general principles, and from the authorities in the case cited and universally applied, it must be concluded that, in determining whether or not the courthouse should be built, and upon what lot it should be built, and what the price should be (within the limit of the taxing power to discharge the debt), and in the employment of an architect, and in fixing his compensation, and in the manner of letting the bid, and in determining to whom the contract should be let, the board of revenue exercises a discretion which can in no manner be controlled, and that their action with reference to these matters is subject to judicial correction only when it is charged and established that there was fraud and collusion, participated in by the governing majority of the board, in the exercise of the functions committed to them. No court, then, could set aside the contract entered into between the board of revenue and Stevens, except upon the ground of fraud. The case before us, however, presents not only this question, but the additional question as to whether, under his contract, Stevens had so performed his contract as to be entitled to have paid to him the sum allowed. A determination requires consideration of the character of the duties discharged by the county commissioners' court when claims are presented for payment. It is entirely clear that, if claims are refused, suit may be instituted upon them in the courts; and the proposition has never been made that, in addition to establishing the validity of the claims, it must also be established that the county commissioners' court, in rejecting them, have been guilty of fraudulent conduct. If it should be insisted that, in passing upon these claims, the county commissioners are really exercising judicial functions, and if the judgment which they reach is a judgment reviewable only for fraud, this additional allegation would have to be made and proved before any claim which one had against the county could be established in the ordinary courts. The conclusion is not one that could be accepted. If the court is not exercising judicial functions when it rejects a claim, can it be said that it is exercising judicial functions when it approves a claim? The character of its act must be held the same in either event. When the action of the county commissioners in the approval of the claim has further ripened into some character of evidence of indebtedness, a somewhat different status may be attained; and when such evidences of indebtedness shall have acquired the status of negotiable. instruments, doubtless different rules would be applicable. But, so long as the claims are still unpaid and not substituted by a new character of county obligation, there would appear to be no reason why the county could not have the same access to a court to establish the invalidity of the alleged claim as a claimant whose claim had been disallowed, to establish its validity. The only difference would doubtless be that allowance by the county board would be prima facie evidence of the validity of the claim. Making direct application of these principles to the instant claim: If fraud in making the contract be shown, no question could arise about the right of the county to attack the board's allowance of the claim, and have the warrant declared illegal. The county may also establish, even if the contract was valid, that it was not performed, and that the resolution adopted by the board of revenue was improvidently and improperly passed on account of that fact. The views which are here expressed are amply sustained by the Alabama authorities. Commissioners' Court v. Moore, 53 Ala. 27: "In the exercise of this authority, the act of the court is not judicial, but executive. If it audits and allows a claim not properly and legally chargeable on the county, or which it has not authority to allow, it exceeds the power with which it is intrusted, and as the act of a corporation which is ultra vires is void, so is the action of the court. Or if, upon false evidence, it should be lured into the allowance of an unjust claim, or should allow a claim which was wanting in consideration, or the consideration of which failed, the county would not be estopped from defending against it. The audit and allowance has no more force and effect than a settlement between individuals. It is a simple admission by the court of county commissioners that there is a valid subsisting debt due and owing by the county. The admission prima facie fixes a liability on the county. So, if a settlement is had between individuals, and the one makes his note or bond payable to another for an ascertained balance, a prima facie debt is established. In each case the burden of impeachment rests on him who questions the prima facie evidence. If, after the audit and allowance, a warrant is, pursuant to the statute, drawn on the county treasurer, it is a mere authority to him to pay. It is nothing more really than an order on the county itself, the debtor. Dillon, Munic. Cor. §§ 406-412. When such warrants have been illegally issued-issued without authority, or when any just defense exists against the claim which they evidence the county may maintain a bill in equity for their cancellation. Id. § 412. And this we incline to regard as the most appropriate remedy. When the claim has been audited and allowed by the commissioners' court, it ceases to be the subject of a suit in the ordinary modes against the county. If the commissioners' court fail to levy and collect a tax for the payment of such claim, they fail to esercise a ministerial or executive power, with which they are clothed, and in the exercise of which an individual has a right and interest, and mandamus lies to compel its exercise. Marshall County v. Jackson County, 36 Ala. 613The answer to the application for such writ could set up the invalidity of the claim audited and allowed. If the funds are in the treasury of the county to pay the same, and the county treasurer should be proceeded against for failure to pay on demand, it would be his duty to set up in defense the invalidity of the claim." a The Claim for $7,225.-The contract of Stevens with the county provided for payment to him for the services therein set forth of per cent. of the cost of the building. Under the terms of the contract, a part of this was payable at the time the contract for the construction of the building was let; and the $4,198.14, already discussed, was the three-fifths of the total amount held payable at that time. The balance of the compensation of the architect was to have been paid as the work (256 F.) progressed. While the $4,198.14 was based upon the bid of the LittleCleckler Company, the total is based upon the bid of the Falls City Construction Company finally accepted. The work of the Falls City Company has been abandoned, but this fact cannot affect the claim of Stevens, if it be otherwise meritorious; and the circumstance that the abandonment was the result of the action of the county, and also the fact that the contract with Stevens was repudiated by the county, gives Stevens a right of action for a breach of his contract. If, however, Stevens can recover at all, it is manifest that, under no circumstances, can the total amount claimed be recovered by him, and that the judgment of the trial court for the total is erroneous. Provision is made in the contract for certain expenses to be met by Stevens, and a recovery of damages for a breach of the contract would necessarily take these expenses into account in a determination of the amount of damages. The observations already made with reference to the $4,198.14 apply to the balance of the claim of $7,225, except that this balance, not having at any time been approved by the board of revenue, must be established by a preponderance of the evidence in favor of the defendant. While the county must show that the $4,198.14 arose out of the contract that was fraudulently made, or that the contract was not carried out by Stevens, the ordinary burdens of a plaintiff as to the balance of the amount must be upon the defendant. [5] The Claim on the Injunction Bond.-Claim for damages on the injunction bond cannot be set up as a counterclaim. It does not arise out of the transaction which is the subject-matter of the suit, but arises out of the suit itself. Nor is it an independent cause of action, upon which an equity suit could be based. But the injunction bond was given in this case, and is an incident of the case, and in this case judgment may be given upon it, if it be shown that damages have accrued. There are obligees of the bond other than defendant the Falls City Construction Company, W. H. Stevens, and W. H. Johnson. There could be no recovery on the bond without these being parties, except for the fact that, having been parties, any claim either of them might have had has been settled by the agreement as the result of which they were dismissed from the suit. As to the surety, the principles of Pease v. Rathbun, Jones Eng. Co., 243 U. S. 273, 37 Sup. Ct. 283, 61 L. Ed. 715, Ann. Cas. 1918C, 1147, would seem to apply. The defendant asserts that the allegations with reference to the claim on the injunction bond are not denied. Issue is formally joined. But in any event, the items of damages, consisting of attorney's fees and other items of expenses incident to the litigation of this case, are not such as are allowable in a federal court. The judgment of the court as to this claim should be affirmed. [6] Claim for Damages for Libel.-Defendant's counterclaim for damages for libel is based upon the allegations of the pleadings in this case. It is not a counterclaim arising out of the transaction which is the subject-matter of the suit. The suit is a matter distinct from the cause of action upon which it is based. Suit for damages for libel may be predicated upon pleadings. In order, however, to sustain such a case, it would have to appear from the 256 F.-22 pleadings of the plaintiff that the allegations complained of were maliciously made, were without foundation in fact, and that the pleader had knowledge of the fact that the allegations were lacking in truth. The evidence in this case is entirely insufficient to maintain the counterclaim. The statements of fact in the pleadings complained of are apparently, as to most matters, true. Where the evidence does not make it appear that they are true, there is nothing to indicate that the pleader had knowledge of the lack of truth. The conclusions of fact, which constitute a large part of the pleadings, are not without warrant; and, if they were, there is nothing to indicate that the conclusions were not the bona fide conclusions of the pleader. The evidence in this case would not have warranted a judgment for damages. [7] This claim has been discussed upon the assumption that a good cause of action could be stated against a county for libel. A county is a governmental subdivision of the state, with very limited and strictly defined powers. No county has been given the authority to commit a libel, nor given the power to authorize any one to commit a libel for it. It is a character of tort for which a county cannot be held. The judgment of the trial judge with reference to the claim for damages for libel may be sustained upon either of these grounds: (1) There was no proper presentation of the claim to the board of reve(2) It was not a matter upon which a counterclaim could be predicated. (3) The evidence would not, in any event, have sustained a judgment. (4) A county cannot be held for damages for libel. nue. Provisions of the Decree as to Payment, etc.-The decree gives directions to the county board of revenue and other officers of the county as to the auditing, allowance, registration, and payment of the claim (paragraphs 4, 5, and 6). Where judgment has been given against a county, the court may, in the case in which it is rendered, make such executory orders and decrees as may be necessary to make the judgment effective; but, if the execution of the judgment requires orders to or against officers of the county, the individuals who are these officers must be brought into court. None of the officers of Covington county has been made a party to this suit, and the judgment as to each of them is ineffective and erroneous. The judgment is affirmed as to the claim for damages for libel and upon the injunction bond. The judgment is in other respects reversed, and the cause is remanded for another trial upon the issues presented by the pleadings with reference to the contract of the county with Stevens, and his claims arising out of the contract. In part affirmed, and reversed in part. (256 F.) AGENCY OF CANADIAN CAR & FOUNDRY CO., Limited, v. (Circuit Court of Appeals, Third Circuit. February 25, 1919.) Nos. 2361, 2362. 1. REPLEVIN 70-ISSUES-BURDEN OF PROOF. A plea of property by both parties in replevin puts in issue plaintiff's interest, and imposes upon it the burden of proving its right to the immediate and exclusive possession of all the property. 2. BAILMENT 7-CONTRACT TO MANUFACTURE GOODS-CONSTRUCTION— RIGHT OF POSSESSION. A contract under which plaintiff delivered certain parts of steel shells to defendant, which was to furnish the necessary work and materials for their completion, construed, and held to give defendant a special property in the shells, upon which it had expended work and materials, and the right to their possession until inspected and accepted by plaintiff. 3. REPLEVIN 96-SUFFICIENCY OF VERDICT A verdict for defendant in replevin for a sum of money only, where the goods were taken by plaintiff on the writ, must be construed as for the value of the goods, where there was no evidence of damages for caption and detention, and is equally good at common law and under Act Pa. April 19, 1901 (P. L. 90) § 7. 4. REPLEVIN INTEREST. 71(1)—EVIDENCE-VALUE OF DEFENDANT'S SPECIAL PROPERTY In replevin for unfinished artillery shells, delivered by plaintiff to defendant under contract for completion, upon which defendant had expended labor and material, but which were unfinished and without market value when plaintiff broke the contract and replevied them, defendant may show the value of its interest by proving the cost of its labor and material, and in addition what would be a reasonable and ordinary profit thereon. 5. ESTOPPEL 63-CLAIM OF PROPERTY BY DEFENDANT-LIEN. A manufacturer, working on material furnished by plaintiff when such material was replevied, held not estopped to assert a property right therein by the fact that it had previously claimed a lien. 6. REPLEVIN 72-LIEN OF DEFENDANT. Evidence held not to sustain the claim of a defendant in replevin to a lien on the property replevied. 7. WORDS AND PHRASES-“VALUE." "Value" of goods is not what they cost their owner; it is what they are worth to him or to others. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Value.] In Error to the District Court of the United States for the Eastern District of Pennsylvania; W. H. Seward Thompson, Judge. Two actions at law by the Agency of Canadian Car & Foundry Company, Limited, against the Pennsylvania Iron Works Company. From the judgments, plaintiff brings error. First judgment affirmed, and second reversed. Ralph B. Evans, Robert J. Doads, and Edwin W. Smith, all of Pittsburgh, Pa. (Reed, Smith, Shaw & Beal, of Pittsburgh, Pa., and For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |