I dissent for the following reasons:
The board of commissioners of roads and revenues takes the place of the ordinary, in so far as this case is concerned, in the discharge of the financial affairs of the County of Wilkes. Weathers v. Easterling, 153 Ga. 601, 603 (supra).
“All contracts entered into by the ordinary [or board of county commissioners, as the case may be] with other persons in behalf of the county must be in writing and entered on the minutes.” Civil Code (1910), § 386.
A person can not enforce -a contract made with a county, by suit or otherwise, unless such contract is entered on the minutes *578of the proper county authority executing the contract on the part of the county. Milburn v. Glynn County, 109 Ga. 473 (34 S. E. 848); Weathers v. Easterling, supra.
Where a contract is let by a municipality for the construction of a public improvement such as the paving of its streets, and an assessment is levied to pay such contract price, the validity of such contract is essential to the validity of the assessment, since otherwise the assessment would be levied to pay a claim not legally due against the city. Sanders v. Gainesville, 141 Ga. 442 (1 a) (supra).
Since there is no contract enforceable against the city for the construction of street-paving as alleged in the petition, because the purported contract wus not in writing and not recorded on the minutes of the board of county commissioners, the assessment was not enforceable as against plaintiffs, abutting-property owners; and the court erred in sustaining a demurrer to the petition as amended.
Even though the invalid contract between the municipality and the county has been fully executed by the completion of the pavenjent, this does not render the assessment valid. There must be a valid and enforceable contract between the municipality and some other contracting party for the laying of the public improvement, before the assessment can be enforced. To hold otherwise would be a solemn adjudication that public servants might ignore the law governing their official actions, and, after executing the terms of their invalid agreement, that the citizen and taxpayer is rendered helpless as against their demands for the payment of money to carry out illegal and invalid obligations.
No estoppel against the plaintiffs can arise on account of the fact that the pavement was completed before the filing of the petition for injunction. Knowledge on the part of plaintiffs that the work of paving was being done by the County of Wilkes could not operate as notice that the municipality of Washington intended to assess abutting-property owners to pay for the same; and inspection of the minutes of the municipality would merely have disclosed the passage of a resolution authorizing two of the members of council to enter into a contract with the County of Wilkes, without disclosing any of the terms of said contract. Inspecting the minutes of the board of commissioners of Wilkes County, and finding no contract with the City of Washington of record in these *579minutes, the plaintiffs would have- beep authorized to conclude that no contract between the county and the municipality had been entered into. Observing the employees of the County of Wilkes actually constructing the paving, which was a part of a continuous highway running through the city, was not notice to the plaintiffs that the city was assuming an obligation to pay for the paving and that abutting-property owners would be assessed for the purpose of payment to the city. Sanders v. Gainesville, supra.
When the case was previously here it was held that a contract between a county and a city was not illegal and void on the ground, as then contended, that such contract was “a delegation of legislative authority of the city to the county, the State Highway Department, and the Federal government, no such delegation of legislative and official discretion appearing from said resolution and contract.” Mayor &c. of Washington v. Faver, 155 Ga. 680 (4) (supra). The court did not rule that the contract was valid as against any attack not then made and dealt with in the case.
Under authority of Sanders v. Gainesville, supra, the petitioners were entitled to the remedy by injunction.
The United States and the State, being sovereigns, have inherent power to contract; but that attribute can not strictly be said to exist in the political subdivisions of the State. Counties in Georgia possess no power to contract, other than that conferred by the sovereign State. Decatur County v. Roberts, 159 Ga. 528 (126 S. E. 460). Whoever deals with the officers of a county is bound at his peril to take notice of the limitations upon the power and authority; for they can only bind the public which they represent within the limits of their authority. “Where the law requires a public contract to be in writing the provisions of the law are mandatory, can not be waived, and are in most instances in the nature of conditions precedent to the exercise by public bodies of the power to contract. They [the courts] therefore hold these provisions of law applicable alike to contracts executed as well as executory. Accordingly, since the manner of making public contracts is thus limited, where it is not followed the contract attempted to be made is illegal, and no recovery may be had thereon even though there has been full performance and the public body has received and retained the benefits. Nor will recovery of reasonable value be permitted.” Donnelly on Public Contracts, § 138; Murphy v. *580Louisville, 9 Bush. (Ky.), 189; Boston Electric Co. v. Cambridge, 163 Mass. 64 (39 N. E. 787); McBrian v. Grand Rapids, 56 Mich. 95 (22 N. W. 206); Schumm v. Seymour, 24 N. J. Eq. 143; McDonald v. Mayor, 68 N. Y. 23 (23 Am. R. 144); Dickinson v. Poughkeepsie, 75 N. Y. 65; Smart v. Philadelphia, 205 Pa. 329 (54 Atl. 1025); McManus v. Philadelphia, 201 Pa. 619 (51 Atl. 322); Watterson v. Nashville, 106 Tenn. 410 (61 S. W. 782); Starkey v. Minneapolis, 19 Minn. 203; Arnott v. Spokane, 6 Wash. 442 (33 Pac. 1063). It should be observed that the Civil Code, § 386, declares that “All contracts entered into by the ordinary with other persons in behalf of the county must be in writing and entered on their minutes.” Since the mandate of the law in this respect applies to “all contracts,” it would seem to be impossible to eliminate some contracts from the operation of the statute. “Public policy requires such restrictive enactments to be rigidly enforced, and the consequences resulting from the void character of the contracts they prohibit must be the same in equity as at law.” Schumm v. Seymour, 24 N. J. Eq. 143 (8).
The majority of the court, in the first headnote, hold that the contract between the municipality and the county “is not such a contract as is required to be in writing and spread upon the minutes of the board of county cqmmissioners of said county.” This conclusion appears to me to be unsound, for several reasons. In the case of Board of Commissioners of Morgan County v. MacDougald Co., 157 Ga. 595 (supra), it was héld that a contract between a county and a paving contractor for the paving of a State-aid road was such a contract as the statute required to be in writing and entered’ on the minutes of the proper county authorities. If there was a contract between the municipality and the county, what was its object? It can not be questioned that the county and the municipality had in contemplation only one thing, and that was the paving of a street which was to connect a State-aid road and make it continuous. The moment we say that the expression in the statute that “all contracts” does not mean all contracts, but that on the contrary some- contracts do not fall within the statute, we enter upon dangerous ground. Such construction destroys almost altogether the protection which the lawmaking power intended to afford the taxpayer. It leaves open, as a matter of construction, each instance where a contract is entered into by the county, to be *581determined by the facts and circumstances as they can be made to appear at the time. Another objection of perhaps equal importance is that the construction amounts to a ruling that.a county may become an agent for a municipality. This construction appears obviously unsound. No such power is given to county authorities under the constitution and laws of this State. No instance has been pointed out under which such an undertaking has been approved by the courts. ’ So far as appears, this is the first instance in which a Georgia county has undertaken to act as the agent of a municipality in any kind of an undertaking. It is significant that in the first instance the undertaking partakes of a dubious character. The undertaking, when analyzed, partakes more or less of a fraud on the United States Government. The Federal Government appropriates funds to be apportioned to the States and expended by and under the direction of the State Highway Commission in the construction of public highways of a designated character. The State Highway Commission can obtain these funds only by obligating itself to see that they are expended according to the laws of the State and of the Federal Government. Such Federal funds are not intended for the use of a municipality, and can not be obtained directly by municipalities. This fact is conceded in the majority opinion, and is offered as an explanation of the necessity of the county becoming an agency of the municipality. In other words, it is explained that, because of the fact that the municipality can not lawfully obtain Federal funds for the paving of its streets, it became necessary for the municipality to constitute the county as its agency, and as such agent the county was to undertake to procure such funds in its own name but to be expended for the benefit of'the city on the streets of the city. It follows, if the county was merely the agent of the city in obtaining Federal funds, that the funds were not obtained for the benefit of the county.
The writer can not escape the conclusion that the transaction was more than a mere indirect method of doing a lawful thing, but that it partook more of the nature of a legal fraud. Under such circumstances it would seem deplorable for this court to condone and approve the transaction. The majority hold that the appointment of the county by the city as its agent was made by resolution, which was spread upon the minutes of the mayor and council; *582and therefore the conclusion is reached that “the contract creating the agency is in writing.” This position also seems untenable. A resolution was adopted by the mayor and council, but it went no further than to empower two of the members of council to enter into a contract with the county. This is far different in effect from a resolution creating an agency on the part of the county to act for the municipality, even if the county could act as such agent. The majority also say, “But if it had rested only in parol, it was made in behalf of the city and not of the county.” In point of fact it is clear from the record that the county was seeking to complete an intercounty road through the City of Washington, and the arrangement was made as much in behalf of the county as it was in behalf of the city. The county was to obtain a. completely connected intercounty highway and the city was deriving the benefit therefrom of Federal funds to be used in part payment for paving the city street. The majority also say that “the contract between the county and the contractor was in writing and spread upon the minutes of the board.” This fact, however, can not lend any element of legality to the transaction between the county and the municipality. The law requires that the municipality must be bound by a legal and enforceable contract binding the city itself to pay for the pavement, before it can assess ’ abutting property owners for repayment. The city had no such contract. It had merely by resolution appointed two of its members to contract with the county. According to the record in the case, these members of the council entered into an oral contract with the county to actually pave the street. The county made a contract with the paving company, which was in writing, entered upon its minutes. The latter contract had no binding effect with respect to the municipality, and could not be enforced against the municipality. According to the record one or the other horn of the dilemma must be accepted, either one of which is fatal to the case. Either, under the terms of the transaction between the county and the municipality, the county took over that portion of the municipal street which was paved and made it a part of the intereounty highway and thus assumed all of the expense of paving and maintenance, to the exclusion of the city, or the county was a mere means or agency by which the city indirectly obtained Federal funds, to which it was not entitled under the law. If the first is the proper construction of the trans*583action, then the city owed nothing for the paving, since the duty to pave rested wholly upon the county. If the status in regard to paving was unchanged by the transaction and the duty still rested upon the municipality, and the county was undertaking to act merely as agent, then the county diverted the Federal funds from the purposes to which they were restricted by law, having obtained the funds under false colors and applied them to the exclusive use of the municipality, which had no right to obtain them.
The decision in Lee County v. Smithville, 154 Ga. 550 (115 S. E. 107), dealt with the right of the State Highway Commission, in conjunction with the county authorities, to lay out and construct a State-aid road through a municipality, so that such highway might be continuous. In the opinion (at p. 560) it was said: “The truth is, that the streets of the towns and cities belong to the State as do the county public roads. The legislature has given to the municipalities temporary control over the streets within their borders, which it can wholly withdraw or modify at will. So we reach the conclusion, that the State Highway Department, cooperating with the county commissioners of Lee County, can build this public road through the town of Smithville without its consent and against its will.” If the effect of the transaction between the county and the City of Washington is to make the portion of the city street in question a part of a State-aid highway, then it must follow that the jurisdiction over the street and responsibility for its upkeep is taken from the municipality and placed upon the State Highway Commission; so that the conclusion is inescapable that the City of Washington was not bound by any enforceable contract for the paving of the street, no matter which view is taken. In either case the transaction, as a matter of law, should not be upheld. For all of these reasons the writer can not concur in the conclusions reached by the majority in the first headnote and first division of the opinion. The conclusion should have been directly to the contrary. The municipality was not bound by any legal and enforceable contract, and for that reason could not enforce assessments against the property owners. This conclusion should control the ease and render unnecessary the consideration of any other issue. The writer is of the opinion that the city created a debt, as contended for by the plaintiffs in error, falling within the provisions of art. 7, section 7, par. 7, of the constitution (Civil Code of *5841910, § 6563); but it is unnecessary, in this dissent, to deal with that question, for the reasons stated above.