#### Hibbard, County Surveyor, *v.*Biddle et al.

*Duties of county commissioners*— As *to plans, etc.*— For *road improvements*— Section *1166, Revised Statutes.*

Section 1166, Revised Statutes, does not require the county commissioners to cause plans, specifications and details to be made in all cases of road improvement.

(No. 11111

Decided October 9, 1909.)

Error to the Circuit Court of Athens county.

The plaintiff, Hibbard, as surveyor, brought suit against the defendants, Biddle, Wolf and Hill, as members of the board of commissioners of Athens county and as members of the board ' of turnpike directors of Athens county, and against Downey and Angel as partners, to enjoin the execution of a contract to be made by said commissioners and ‘ directors with said Downey and Angel for the improvement of a turnpike, and to enjoin the expenditure of money in pursuance of such contract. The substantial allegations of the petition were, that the plaintiff was the duly elected and qualified surveyor of Athens county; that the three first named defendants were its commissioners, and acting as the board of turnpike directors for the county, and that they had agreed with Downey and Angel for the repair of a road in said county by adding lime and sandstone to said road, and to drain the same in a workmanlike manner in consideration of prices agreed upon by them; that this was done without any plans, specifications, details, estimates of costs or form *182of contract, and that the said defendants had not requested the plaintiff to prepare such plans, specifications, details, etc., and that they had refused to allow or approve any claim which he might make for services if he should prepare such plans, specifications and estimates. The circuit court sustained a demurrer to this petition and dismissed the petition, adjudging the costs of the suit against the plaintiff.

*Messrs. Lewis & Sayre,*for plaintiff in error.

*Mr. Wade H. Ellis,*attorney general; *Mr. W. H. Miller; Mr. I. M. Foster,*and *Mr. Clarence D. Laylin,*for defendants in error.

By the Court.

Counsel for the plaintiff rely upon Section 1166, Revised Statutes, as giving the right of action upon the facts alleged in their petition. The material provisions' of that section are as follows: “The county surveyor shall perform all duties for such county as are now or may hereafter be authorized or declared by law to be done by any civil engineer or surveyor. He shall prepare all plans, specifications, details, estimates of cost, and submit forms of contracts, for the construction or repair of all bridges, culverts, roads, drains, ditches and other public improvements (except buildings) which may be constructed under the authority of any board within and for such county. * * * He shall make all surveys required by law to be made, and perform all necessary services to be performed by a surveyor or civil engineer in connection with the *183construction, repair or opening of all county roads, turnpikes, and ditches constructed under the authority of the board of county commissioners, and shall perform such other duties as said board may from time to time require.”

Manifestly the section contains no express provision that plans, specifications, details, estimates of costs shall be prepared by any one for all highway repairs. The proposition of counsel for the plaintiff is, that that requirement is implied in the general provisions of the section when considered in connection with numerous other provisions of the statute requiring them to be made for buildings and other improvements. The better view seems to be, that the omission of the requirement in this case indicates that the subject is to be left to the large discretion which the statutes generally confer upon the board of county” commissioners, and that is especially true in view of the obvious fact that in many repairs of roads, such plans, specifications, *et cetera,*would not be necessary or even practicable. Whether in a given case they are practicable and necessary, is left to the discretion of the county commission euy. the effect of the amended section *in*that regard being, that if they deem them necessary they shall be prepared by the County surveyor.

*Judgment affirmed.*

___ Crew, C. J., Summers, Spear, Davis, Shauck and Price, JJ., concur.