#### Commissioners of Athens County *v.*Baltimore Short Line Railroad Company.

The provision in section 4 of the act further to prescribe the duties of county commissioners (S. & C. 250), declaring it to be essential to the validity of a contract entered into by the commissioners, that it shall be entered in the minutes of their proceedings by the auditor, is intended for the protection of the county from liability on such contract, unless evidenced or authenticated in the mode prescribed; but, where such contract has been fully performed on the part of the county, the other party to the contract cannot resist performance on his part, on the ground that it was not so entered. By accepting performance by the commissioners the defendant is precluded from raising the question.

Error to the District Court of Athens County.

The original action was brought by the Board of Commissioners of Athens County against the Baltimore Short Line Railroad Company, upon an agreement entered into between the parties. This agreement was, in substance, that, in consideration of the grant by the commissioners of the right to the company to use and occupy portions of a certain county road permanently and other portions temporarily, in the location, construction and operation of its railroad, the company agreed to restore such portions of said road as should be temporarily occupied to its former condition; and for such portions as should be permanently occupied by the railroad, the company would provide new portions of said road, so that the said county road should be as good and safe for the public as it was before it was taken possession of by the company.

The petition avers that the. company took possession of the county road under the agreement, appropriating portions thereof to the use of its railroad permanently, and occupying other portions temporarily in the construction of its railroad but that the company had failed and refused to comply with said agreement on its part.

Among other defenses, the defendant pleaded the following:

*“*II. And as a defense to the said petition so finally amended, the déf-endant says, that the engagement and contract in said *206amended petition set forth, was not entered in the minutes of the proceedings of said board by the auditor of said county.”

On demurrer, this defense was adjudged a bar to the action, and judgment was rendered dismissing the petition. The judgment was affirmed by the district court; and the present petition in error is prosecuted to reverse both judgments.

*Charles H.*Grosvenor, and *Charles Townsend,*for plaintiff in error:

1. Where a railroad company made a contract with the board of county commissioners, by which said company was to occupy, for the purpose of its track, certain portions of a county road, and promised to make a new road as good as the old, it is not essential to the validity of - such contract that the action of the county commissioners in the premises be made a matter of record. Section 34, S. *&*C. Stats. 250. The contract is executed. The defendant has received its benefits. The statute is directory. It contains no negative words. Angelí & Ames on Contracts, § 254;' Dwarris on Stats. 606 ; Sedgwick on Stat. and Con. Law, §§368, 369, 370, 372, note, 375; *Foster*v. *Prowse,*Strange, 625; *Rex*v. Sparrow, 2 Strange, 1123; *Rex*v. Loxdale, 1 Barrow, 447; *Rex*v. *Justices of Leicester,*7 Barne. *&*C., 6; *Rex*v. *Inhabitants of Birmingham,*8 Barne. *&*C. 29, 35; *Governors of Bristol*v. *Poore,*1 Adol. & El. 264; 11 Adol. & El. 73 ; 2 Adol. & El. 99 ; 1 Botts’ Poor Laws, 610; *Cole*v. *Green,*6 M. & *G.*872; 2 Id. 230 ; 7 Barne. & C. 6 ; 8 Id. 29; 9 Dowl. & Ry. 772 ; Lindley’s Law of Parnership and Joint Stock Co., 679. Sedgwick, in his work on Statutory and Constitutional Law, at page 375, says: “ The general principle that statutory provisions may, in certain cases, be treated as purely directory, has been recognized in all the States, and cites *People*v. *John,*1 Mich. 452, 453 ; *State*v. McGinley, 4 Ind. 7 ; *Colt v. Eves,*12 Conn. 243; *Edwards v. James,*13 Texas, 52 ; *People v. Supervisors of Chenango,*8 N.Y. 317. See also *People v. Supervisors of Ulster,*34 N. Y. 272; *Savage v. Walsh,*26 Ala. 620 ; *Buckley v. Derby Fishing Co.,*2 Conn. 254; *Wute r. Derby Fishing Company,*2 Id. 260; *City of New Orleans v. St.**207*Rowes,*9 La. Ann. 573; *Pond v.*Negus, 3 Id. 230; *Williams*v. *School District,*21 Pick. 75 ; *City of Lowell*v. *Hadley,*8 Met. 180; *People*v. *Allen,*6 Wend. 487; *People*v. Holley, 12 Wend. 481; *In re M. & H. R. R. Co.,*19 Wend. 143 ; *In re Mt. Morris Square,*2 Hill, 20; *Marchant*v. *Langworthy,*6 Id. 646 ; *Striker*v. *Kelly,*7 Id. 9; *Allen*v. *Parrish,*3 Ohio, 195 ; *Blanchurd*v. *Bissell,*11 Ohio St. 103; *Fry*v. *Booth,*19 Ohio St. 25.

2. The railroad company haying gone upon such county road, and taken possession of it, and rendered it unfit for travel and in violation of its promise refuses to construct a new road, it is estopped to set up the failure of the auditor to enter such contract on the record as a defense to an action for damages by the county for such violation. *Comm'rs. &c.*v. *Aspinwall,*21 How. (U. S.) 539 ; *Woods*v. *Lawrence Co.,*1 Black, 386; 2 Black, 722 ; 24 How. 287 ; *Zabriskie*v. *Railroad Co.,*23 How. (U. S.) 381; *Mercer Co.*v. *Hachett,*1 Wall. 83; *Gelpcke*v. *City of Dubuque,*1 Wall. 175 ; *Meyer v. City of Muscatine,*1 Wall. 384; *Rogers*v. *Burlington,*3 Wall. 654; *Marsh*v. *Fulton Co.,*10 Wall. 676; Angell & Ames on Corporations, §§ 238-240 ; 7 Ohio St. 327; 8 Ohio St. 394; 12 Ohio St. 624.

*E. A. Guthrie, De Steigner, Jewett & Slattery,*for defendant in error.

White, J.

Had the railroad company obstructed the highway without authority, section 17, of: the act establishing boards of county commissioners, as amended March 7, 1873 (70 O. L. 53) would have afforded an adequate remedy. *Little Miami R. R. Co.*v. *Commissioners*of *Greene County,*31 O. S. 338.

But the amended petition, on which the case was adjudicated, is founded on an agreement entered into between the commissioners and the railroad company, under section 12 of the act providing for the creation and regulation of incorporated companies, as amended April 15, 1857. S. & O. Stats. 278. The agreement prescribes the terms and conditions upon which the railroad company was to occupy and use the highway; and the *208company having taken possession of the highway and appropriated it to the uses of the railroad, under the agreement, the question is whether the company is bound to perform the agreement on its part.

The company rests its defense on section 4 of the act of April 8, 1856, further to prescribe the duties of county commissioners. S. *&*C. Stats. 249. The section is as follows: “It shall be essential to the validity of every contract entered into by the county commissioners, or order made by them, that the same shall have been assented to at a regular or special session thereof, and entered in the minutes of their proceedings by the auditor. ”

The ground on which the company claims to be relieved from the performance of the agreement, is that it was not entered in the minutes of the proceedings of the commissioners as required by this section.

The object of the section is to protect the county from liabilities of the character named in the section, unless they are evidenced or authenticated in the mode prescribed. But where the agreement has been fully executed by the commissioners on the part of the county, and the defendant is in the full enjoyment of the lights and benefits intended to be conferred by the agreement, the failure to record cannot avail as a defense. The defendant is, in such case, upon the plainest principles of justice, precluded from raising the question.

Judgments reversed, demurrer sustained to the second defense, and the cause remanded to the court of common pleas for further proceedings.