Call Pub. Co. v. City of Lincoln

• Decision Date: 19 March 1890
• Citation: 29 Neb. 149,45 N.W. 245
• Parties: CALL PUB. CO. v. CITY OF LINCOLN.
• Court: Nebraska Supreme Court

29 Neb. 149

45 N.W. 245

CALL PUB. CO.

v.CITY OF LINCOLN.

Supreme Court of Nebraska.

March 19, 1890.

Syllabus by the Court.

1. Neither the duty nor the power to contract for the publication of notices, claims, advertisements, proclamations, reports, or ordinances is imposed by the terms of charters of cities of the first class upon the city, the mayor, and council, or either or any officer of the city.

2. No member of the city council, as committeeman or otherwise, has legal power or right, nor is it his duty, to designate the person who shall publish, or the newspaper in which shall be printed, any notice or other matter for the city.

3. Notices and other matter published by a corporation in which a city councilman is a stockholder, held to be legal, and such corporation entitled to pay therefor from the city.

Error to district court, Lancaster county; FIELD, Judge.Charles L. Hall, for plaintiff in error.

G. M. Lambertson and H. J. Whitmore, for defendant in error.

COBB, C. J.

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 25 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 custom 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 section 46, c. 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; nor for the printing, the maximum price of which is limited by the ninety-third 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 a 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, water-works, bridges, curbings, and gutters, and the improvement of streets, 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 advertisements shall be at least ten days in some daily newspaper of general circulation published in the city.” Section 36, among other things, provides that “no claim, arising either on contract or tort, exceeding the sum of $25.00, 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...