dissenting.
The majority concludes that the informal understanding of February 4, 1970, between plaintiff, ex-chairman Gleason and ex-mayor Schrunk to pay plaintiff certain contingent supplemental retirement benefits to be determined in the future, constituted a legally binding contract by the county to pay such benefits at this time.
For the following reasons I cannot agree:
First, under the express provisions of the Multnomah County Home Rule Charter the granting of retirement benefits is exclusively a legislative matter.
Section 7.50 of the charter provides:
"The board of county commissioners shall provide a retirement system for all persons in the county service who desire retirement benefits in return for their services to the county. The system shall afford them rights at least the equivalent of the rights that they have under the retirement system applicable to them under state law as it applies immediately before this charter takes effect.”
Section 2.20 of the charter provides:
"Except as this charter or a state constitutional or statutory provision regarding the initiative and ref erendum provides to the contrary, the legislative power of the county shall be vested in and exercisable only by the board of comity commissioners. Any other power of the county not vested by the charter elsewhere shall be vested in the board but may be delegated by it.”
It follows from the foregoing provisions that before the county could be legally bound to pay any retirement benefits to plaintiff, or any other employe for that matter, the same must be duly authorized by legislative action (ordinance) of the board of county commissioners. Section 7.50, supra.
Next, the majority concludes that the Purcell-Gleason-Schrunk understanding was sufficient because it was "ratified” by the county commissioners *492when they approved Purcell’s appointment on February 5, 1970.
Under section 6.10(3) of the charter the chairman’s appointments to directorship of county departments, including the sheriff, are subject to board approval.
The vote of the board confirming plaintiffs appointment on February 5,1970, was on its face simply a performance by the board of its approval function under section 6.10(3) and nothing more. I do not see how this resolution can be stretched to the point of constituting either 'legislative action’ within the meaning of sections 7.50 and 2.20 of the charter, or a valid and binding contract to pay supplemental retirement benefits if and when the same were to become authorized by act of the legislature and/or ordinance of the Portland City Council.
As I read the record, the most that can be said for the understanding between Purcell, Gleason and Schrunk was this: that if Purcell would accept appointment as sheriff, Gleason and Schrunk would see to it that Purcell would receive the full benefits of any retirement legislation which was then about to be introduced in the upcoming session of the state legislature, and similar proposals by the City of Portland and Multnomah County. I can find nothing in the charter that gives the chairman power to make any retirement contracts on behalf of the county. On the contrary sections 7.50 and 2.20 vest this power exclusively in the board of county commissioners. The rule applicable here was laid down by the Oregon Supreme Court in State v. Des Chutes Land Co., 64 Or 167, 175, 129 P 764 (1913).
"* * * There is no apparent authority, so called, in a public officer whose duties are prescribed by statute like there would be in the case of an agent for a private party. The representative of the State must have actual authority in such cases. The agent of the State, acting under a public law, must find sanction for his doings in the statute itself; and parties dealing with such agent are bound, at their peril, to take notice of the enactment *493conferring the agent’s authority. A contract made by a public officer in excess of the provisions of the statute authorizing such contract is void, so far as it departs from or exceeds the terms of the law under which it was attempted to be negotiated. [Citing cases.]”
Next, even assuming arguendo that a majority of the county commissioners had authority to and did agree to this proposal, I do not think that the same was sufficiently definite in its terms to constitute a contract which would be legally binding upon the county. In other words the board of county commissioners could not approve an agreement the terms of which were not in existence and were in fact unknown to all concerned at the time and might never come into existence.
Further, even assuming arguendo that the Purcell-Gleason-Schrurik understanding was validly entered into and sufficiently definite in its terms, it might also be subject to attack because it would constitute an ultra vires agreement by the commissioners and Schrunk to enact legislation, namely, to enact city and county ordinances embodying those terms.
Next, the deduction of various sums from Purcell's paycheck which were matched by the county were not made in pursuance of the Purcell-Gleason-Schrunk understanding, contrary to the implication in the majority opinion. The evidence establishes that these deductions and payments were the result of an administrative misunderstanding by the county fiscal office, namely, that Purcell was to be covered under the county’s ordinance (No. 25) providing retirement benefits for all sworn law enforcement personnel.
In the first place Purcell was not eligible for coverage under this ordinance. In the second place Purcell makes no claim under this ordinance. Thirdly, I fail to see how moneys withheld erroneously under an entirely separate ordinance can be construed as giving rise to an estoppel for a totally different proposition.
*494In summary, while the evidence establishes that the commissioners and the late Mayor Schrunk may have undertaken a moral obligation to provide ex-sheriff Purcell with these contingent retirement benefits, I can find no basis for holding that the county is under a legal obligation to pay such benefits at this time.
I am not prepared to say that the board of county commissioners and the Portland City Council could not have lawfully accomplished their objective by the passage of appropriate ordinances plus possibly a cooperative cost-sharing agreement between the city and county after the supplemental retirement benefits came into existence. However, the record shows that they failed to do so. The conclusion is inescapable to me that the courts are powerless to accomplish for them ex post facto what the parties failed to do themselves.
Finally, even assuming arguendo that the majority is correct in concluding that defendant Multnomah County is to be held liable on the Purcell-GleasonSchrunk agreement, the majority does not go far enough.
If Multnomah County is liable on what was admittedly a three-way agreement, why should the City of Portland be relieved of liability thereon? If the majority’s conclusion is correct in this respect, then the majority should also reverse that portion of the order and judgment of the trial court holding the City of Portland harmless from any liability on the agreement and hold Multnomah County and the City of Portland equally liable. I can see no rational basis for holding one party liable and not holding the others equally liable.
For the above reasons I respectfully dissent.