45 N.W. 245 (Neb. 1890), Call Publishing Co. v. City of Lincoln

Citation:45 N.W. 245, 29 Neb. 149
Opinion Judge:COBB, CH. J.
Attorney:Charles L. Hall, for plaintiff in error: G. M. Lambertson, and H. J. Whitmore, contra:
Case Date:March 19, 1890
Court:Supreme Court of Nebraska

Page 245

45 N.W. 245 (Neb. 1890)

29 Neb. 149




Supreme Court of Nebraska

March 19, 1890

ERROR to the district court for Lancaster county. Tried below before FIELD, J.


Charles L. Hall, for plaintiff in error:

The holdings in Smith v. Albany, 61 N.Y. 444, Long v. Boone, 36 Ind. 60, and Currie v. Sch. Dist., 35 Minn. 165, are not sustained by the weight of authority. Contracts like the one under discussion are but voidable at most, and then only for fraud and collusion, in the absence of which they will be enforced. (Mayor v. Muzzy, 33 Mich. 61; Albright v. Chester, 9 Rich. L. [S. Car.], 399; Junkins v. Sch. Dist., 39 Me. 222; Geer v. Sch. Dist., 6 Vt. 76; Rogers v. Danby, etc., Soc., 19 Id., 187; Hayward v. Pilgrim Soc., 21 Pick. [Mass.], 270; Buell v. Buckingham, 16 Iowa 284.) The claim does not come within the provisions of sec. 46, ch. 14, Laws, 1889. The term contract is there used only in reference to work which the city officers fix the price of at their discretion, supervise during its progress, and may accept or reject on completion. In this instance the law requires the work to be done and fixes the maximum price therefor. Village of Dwight v. Palmer, cited by defendant in error, was rendered under a statute much broader than sec. 46. Plaintiff can at least recover on a quantum meruit. (Mayor v. Huff, 60 Ga. 226.) The statute is highly penal; it takes private property for public use without just compensation and should not be extended by implication. (City of Lawrence v. Killam, 11 Kan. 499; Dickenson v. State, 20 Neb. 81.)

G. M. Lambertson, and H. J. Whitmore, contra:

The employment of plaintiff in error was in effect a contract made by an agent of the city with himself, and is therefore void. (Port v. Russell, 36 Ind. 60; People v. Overyssel, 11 Mich. 222; Currie v. School District, 35 Minn. 165; Smith v. Albany, 61 N.Y. 444; Gardner v. Ogden, 22 Id., 332; Butts v. Wood, 37 Id., 317; Collier v. Swindle, 6 Grant [Can.], 282; Wardell v. R. Co, 103 U.S. 658; Marsh v. Whitmore, 21 Wall. [U. S.], 183; Michoud v. Girod, 4 HOW [U. S.], 555; Dillon. Munic. Cor., sec. 444. Mayor v. Muzzy, cited by plaintiff in error, is not in point. Recovery is prohibited by a statute which has its counterpart in those of many other states. Such contracts are prohibited in: Arkansas, sec. 3330, Laws, 1874; Arizona, secs. 3062-64, Civil Code, 1887; California, secs. 920 and 922; Colorado, sec. 3359, Laws, 1883; Idaho; Illinois; Indiana, sec. 3104, Laws, 1888; Iowa, sec. 670, Laws, 1888; Kansas, sec. 738, Comp. L., 1885; Maine, ch. 3, sec. 36, Rev. Stat., 1883; Minnesota, sec. 160, page 192, Laws, 1878; Michigan, sec. 2524, Laws, 1882; New York; Ohio, sec. 2699, Laws 1886; Pennsylvania, ch. 2, B. & P. Digest, sec. 21, page 1216; Tennessee, secs. 1623 and 1674, Laws, 1884; Texas, sec. 495, page 190, vol. 1, Sayles Stats.; Utah, sec. 1770, page 635, Laws, 1888; Wisconsin. In Missouri the offending official forfeits his office. In Nebraska, Kansas, Wisconsin, Indiana, and Maine such contracts are declared to be void. In Arizona and California they are voidable. Nowhere has the constitutionality of these statutes been questioned. They have been sustained in Moore v. Durgin, 68 Me. 148; Deering v. Saco, 68 Id., 325; City of Ft. Wayne v. Rosenthal, 75 Id., 156; McGregor v. City of Logansport, 79 Ind. 166; Village of Dwight v. Palmer, 74 Ill. 295; City of Anna v. O'Calahan, 3 Ill. App., 176. It is no defense that the city has received the benefit. (Trustees of Belleview v. Hohn, 82 Ky. 1.) There are no benefits in this case which the city can return, nor is it bound to restore property received. (City of Detroit v. Paving Co., 36 Mich. 335; City of Ft. Wayne...

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