Call Publishing Co. v. City of Lincoln
| Decision Date | 19 March 1890 |
| Citation | 45 N.W. 245,29 Neb. 149 |
| Parties | CALL PUBLISHING CO. v. CITY OF LINCOLN |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county. Tried below before FIELD, J.
REVERSED AND REMANDED.
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. 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 v. Rosenthal, and Village of Dwight v. Palmer, supra.) The law never implies an obligation to do what it forbids one to agree to do. (Brady v. Mayor, 16 HOW Pr. [N. Y.], 432.)
The Call Publishing Company, a corporation issuing a daily and weekly newspaper, sued the city of Lincoln to recover the value of printing and publishing certain ordinances, advertisements, and public notices, required by law to be published, from July 16 to October 13, 1889, inclusive, at the legal rate of twenty-five cents per square, amounting to $ 159.25, which, having been advertised, was presented to the city council for allowance and was rejected, from which appeal was taken to the district court.
The petition alleges that one of the councilmen of the city, H. M. Bushnell, is a stockholder in the plaintiff's corporation, and was chairman of the council's committee on printing during the time of the publication of the ordinances, advertisements, and public notices mentioned, which were so ordered, printed, and published according to the established usage and customs of the defendant.
The defendant demurred on the grounds:
1. That a recovery would be against public policy.
2. That it would be against the provisions of sec. 46, chap. 14, of the Session Laws of 1889, which were sustained by the court, and the petition dismissed at plaintiff's costs.
The plaintiff's grounds of error are that the court erred in sustaining the demurrer, and in dismissing the petition at the plaintiff's costs.
While it may have been, and probably was, the general intention of the legislature in framing and passing the act entitled "An act to incorporate cities of the first class, and regulating their duties, powers, government, and remedies," approved March 29, 1889, popularly known as the "Lincoln city charter," to provide that all supplies furnished, and all services rendered to the city, except the services of the officers therein provided for, should be furnished or rendered under express written contract upon competitive bids, or proposals, therefor, yet I am unable to find any section, clause, or provision which expressly, or by implication, makes it the duty of any officer or department of the city to enter into contract for the publication of any of the notices therein required to be made, or for the printing, the maximum price of which is limited by the 93d section of the act. But, on the contrary, a consideration of the several provisions of the act, and especially of said section 93, leads me to the conclusion that the legislature did not intend that it should be imperative upon the city government to enter into contract upon competitive propositions for its necessary printing or publishing.
In section 29 of the act, the city engineer is required to "make estimate of the cost of labor and materials which may be done or furnished by contract with the city, and make all surveys, estimates, and calculations necessary to be made for the establishment of grades, building of culverts, sewers, waterworks, bridges, curbings, and gutters, and erection and repair of buildings," etc., and said section further provides that before the city council shall make any contract for the above character of works, or any other work, or improvement, to cost over two hundred dollars, an estimate of the total cost, together with detailed plans and specifications, shall be made by the city engineer, etc.; "and in advertising for bids for any such work," etc., "such advertisement shall be at least ten days in some daily newspaper of general circulation published in the city." Section 36, amongst other things, provides that "No claim arising on contract or tort exceeding the sum of $ 25 shall be allowed until the same shall have been read in open council and the name of the claimant and the amount and nature of the claim published once in a daily newspaper published and of general circulation in said city." Section 40 provides for the passage annually of an ordinance to be termed the "annual appropriation bill," and section 41 provides that before such annual appropriation bill shall be passed the council shall prepare an estimate of the probable amount of money necessary for all purposes, to be raised in said city during the fiscal year, etc., and shall cause the same to be published for one week in some daily newspaper published and of general circulation in the city. Section 48 provides that all ordinances of a general nature shall, within one month after they are passed, be published in some newspaper published within the city, or in pamphlet form, etc. There are several other provisions of the act providing for the publication of notices, all in substantially the same language; and finally, section 93 is as follows: "The mayor or council shall not allow or pay for the printing of any notice, advertisement, or publication in any newspaper any greater sum or rate than twenty-five cents per square, of unleaded nonpareil type; and such bill shall first be audited by the city clerk." The language of these provisions, considered separately or together, repels the idea, or conclusion, that such publication or printing is to be contracted for, and as to what officer of the city upon whom shall rest the duty or responsibility of selecting the newspaper in...
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