City of Chicago v. Galpin

• Decision Date: 21 December 1899
• Citation: 55 N.E. 731,183 Ill. 399
• Parties: CITY OF CHICAGO et al. v. GALPIN et al.
• Court: Illinois Supreme Court

183 Ill. 399

55 N.E. 731

CITY OF CHICAGO et al.

v.GALPIN et al.

Supreme Court of Illinois.

Dec. 21, 1899.

Appeal from superior court, Cook county; R. W. Hilscher, Judge.

Action by Homer B. Galpin and others against the city of Chicago and others to enjoin the execution of a contract, and to restrain the defendants from paying out any money thereunder. From a decree in favor of complainants, defendants appeal. Affirmed.

Cartwright, C. J., and Phillips and Carter, JJ., dissenting.

Charles S. Thornton, Corp. Counsel, and Granville W. Browning, First Asst. Corp. Counsel, for appellants.

Collins & Fletcher, for appellees.

PER CURIAM.

This was a bill for injunction, in the superior court of Cook county, by the appellees, Homer B. Galpin and others, as taxpayers in the city of Chicago, praying for a writ restraining the city, and its mayor and comptroller, from awarding or executing certain contracts with the American Development Company for furnishing gasoline lights in the outer districts of the city, and to restrain the defendants from paying any money under the contracts, if already executed.

The two contracts set up in the bill were entered into September 22, 1897. One was for ‘2,800 lamps (more or less), to be operated and lighted by said party of the second part, * * * each of said lamps to be lit every night in each month, and to be kept lit from dusk until dawn; * * * the price to be paid the party of the second part to be at the rate of eleven dollars and forty-eight cents ($11.48) per annum for each and every lamp lighted, payments to be made monthly; all claims for lamps not lighted to be reported by party of the first part to the party of the second part at once, giving date, location, hour, and by whom reported; otherwise, no claim for lamps not lighted to be allowed. * * * And said first party further agrees to pay said party of the second part for the lighting of said lamps and the operating thereof according to the terms of the foregoing agreement. * * * It is hereby understood and agreed by and between the parties hereto that this agreement shall take effect on and from the 1st day of October, 1897, and shall continue in force and effect for a period of one year from and after such date: provided, however, that if the said party of the second part shall desire to continue this contract in force and effect for the further period of one year, beginning on the 1st day of October, 1898, upon the same terms and conditions as provided for herein, said party of the second part shall have the privilege of so doing, upon its giving at least thirty days' notice in writing before the 1st day of October, 1898, to the party of the first part, of its intention and desire to so continue this agreement in force and effect another year.’ The other was for the lighting, etc., of 7,000 lamps, the agreement to take effect and be in force on and from the 1st day of April, 1898, and to continue in force for one year, with the privilege to continue it for another, upon like notice as in the former contract.

Two grounds for the injunction are set up and relied upon in the bill: First, that no provision in the annual appropriation for the year 1897 for street lighting was made for more than one year; and, second, because the contracts incurred a municipal indebtedness beyond the constitutional limit, alleging that the city had already reached the limit of such indebtedness. On a hearing of the cause, the temporary injunction theretofore issued was made perpetual, to reverse which decree the city prosecutes this appeal.

It is contended in the argument on behalf of appellees that the city comptroller had no authority to enter into the contracts, but that that duty devolved, under the city ordinances, upon the commissioner of public works alone. The principal answer to this contention is that on the 28th day of February, 1898, several months after the making of the contracts, the city council passed an ordinance ratifying and confirming the action of the mayor and comptroller in making the contracts, and confirming the same. This ordinance seems to have been regularly enacted, and, for the purposes of this opinion, may be treated as a ratification of the contracts, and removing any objection to the formalities by which they were entered into.

On the other question,-that is, whether or not, by the terms of these contracts, the city incurred an indebtedness beyond the constitutional limit,-counsel for the city contend that no indebtedness, within the meaning of the constitutional inhibition (article 9, § 12), was created. They say: ‘The contracts in question are voidable by the city, and not void. They are reasonably in the interest of the city and the taxpayer, and can be canceled by notice at any time.’ And again: ‘If, in any year during the life of the contracts, the city council fails to include in the annual appropriation ordinance provision to pay for services and supplies under these contracts, that omission will terminate them, and no recovery can be had for such services and supplies thereafter rendered and furnished.’ We scarcely think the learned counsel intend to be understood as urging these propositions literally as stated. We are at a loss to perceive how it can be said that these contracts are legal and binding upon the contractor, but may be repudiated by the city at its option; and we assume that the real defense is ‘that no indebtedness whatever was created by the execution of the contracts, because they are continuing contracts, providing for monthly payments of so much as shall be found to be due at the end of the month for lamps actually in use during that month.’

The cases in this state chiefly relief upon in support of this proposition are City of East St. Louis v. East St. Louis Gaslight & Coke Co., 98 Ill. 415;Carlyle Water, Light & Power Co. v. City of Carlyle, 31 Ill. App. 325; and City of Carlyle v. Carlyle Water, Light & Power Co., 140 Ill. 445, 29 N. E. 556. We had occasion, in the recent case of City of Chicago v. McDonald, 176 Ill. 404, 52 N. E. 982, to reconsider those cases, in connection with others upon the same subject, and reached the conclusion that they did not sustain the contention there made in support of the validity of the contracts sought to be enjoined, and, if these contracts are construed as fixing the amount to be paid by the city at the end of each month, the decision in that case is decisive of this; that is to say, if these contracts, by their terms, had definitely stated that the contractors were to light in the one case 2,800 lamps, and in the other 7,000, and maintain them, to be paid for at the rate of $11.48 per annum, the amount to be paid monthly, the McDonald Case would control the decision here. There, the only contingency or uncertainty as to whether or not the city would be liable to pay at the end of a month was that which might arise from the failure of the contractors to perform the contract, the amount to be paid being definitely ascertained and fixed by the terms of the...