City of Mena v. Tomlinson Brothers

• Decision Date: 19 April 1915
• Docket Number: 326
• Citation: 175 S.W. 1187,118 Ark. 166
• Parties: CITY OF MENA v. TOMLINSON BROTHERS
• Court: Arkansas Supreme Court

175 S.W. 1187

118 Ark. 166

CITY OF MENA v. TOMLINSON BROTHERS

No. 326

Supreme Court of Arkansas

April 19, 1915

Appeal from Polk Circuit Court; Jefferson T. Cowling, Judge affirmed.

STATEMENT BY THE COURT.

Tomlinson Brothers, a partnership, brought suit against the City of Mena for $ 1,200, alleged to be due from the city for furnishing 150 lights at $ 1.60 each, for the months of April, May, June, July and August, 1913, under its contract with the city, made on February 28, 1913.

It was alleged that the contract stipulated that if the city did not within thirty days from the passage and publication of the ordinance, designate the location of the lights, the same could be located by Tomlinson Brothers. That under the terms of the contract, they were required to install and furnish 138 lights of 32 candle-power each, and twelve lights of 100 candle-power each, receiving for the service, $ 1.60 for each light per month. That they had furnished said lights as stipulated in the contract, that the said amount of $ 1,200 was due for the service for said months, and that the city had failed and refused to pay the same or any part of it; and prayed judgment therefor, with interest.

A copy of the ordinance granting the franchise was exhibited with the complaint and their written acceptance of same.

The city answered, denying that it had entered in to a contract with the plaintiffs to furnish lights as alleged; that the alleged contract contained the stipulation relative to locating the lights; that under the terms of the alleged contract the lights were installed and furnished to the city at the price and for the months claimed and that it was due the plaintiffs any sum whatever.

It was further alleged that the contract was never legally entered into because the ordinance was passed at an adjourned meeting of the council, of which no notice was given, because the contract was not made with the plaintiff by the board of public affairs of the city, after an advertisement for bids and upon the report and recommendation of the board of public affairs to the city council.

It alleged further, that plaintiffs had never accepted the ordinance, had failed to comply with the terms of the alleged contract in not reducing the charge for commercial lighting as stipulated by its terms, and because of their failure to install the lights for more than a year after entering into the contract.

Plaintiffs replied, denying the allegations of this answer and demurring to several paragraphs of it alleged also that the city was estopped by its conduct to deny the validity of the contract and its liability for the lights furnished thereunder.

It appears from the testimony that the city of Mena entered into a contract with Tomlinson Brothers to furnish lights for the streets, parks and public places in said city, for a term expiring January 2, 1920. The contract was in the form of an ordinance, accepted in writing by Tomlinson Brothers. Prior to the meeting of the council, the terms of the ordinance had been virtually agreed on by the members of the council, some of whom had requested Tomlinson Brothers to proceed with the purchase of materials for installment of the lighting system that it might be done as soon after the passage of the ordinance as practicable and some of the materials had been purchased in compliance with the suggestion. After the passage and acceptance of the ordinance and a large part of the materials for construction had arrived and was being installed, a referendum petition was filed with the Secretary of State, containing the required number of petitioners asking that the ordinance be referred to the voters of said city, and upon notice received from the Secretary of State that it had been filed, Tomlinson Brothers stopped the work of further construction. On June 7, 1913, they filed a suit, against the Secretary of State, in Pulaski County, praying that he be enjoined from certifying the ordinance to the election commissioners of the county to be voted upon. The case was finally disposed of on appeal to the Supreme Court, by a decision rendered in their favor on December 22, 1913.

Immediately thereafter, plaintiffs resumed the work of constructing the lighting system, and installed the lights on the last day of February, 1914, and presented monthly bills for the amount claimed to be due for furnishing lights each month thereafter for allowance, and all were disallowed or not acted upon.

Plaintiffs reduced the price on commercial lighting to the amount fixed by the terms of the ordinance on December 1, 1913.

The ordinance granting the franchise and making the contract for lighting the city with Tomlinson Brothers written acceptance thereof, is recorded as ordinance No. 285 in the ordinance book of the city. It shows it was passed and approved February 27, 1913.

The time for the regular meetings of the city council of Mena was the first Tuesday of each month. The city council met in regular session on the first Tuesday of February, 1913, and adjourned to February 12. At the meeting on the 12th, the minutes showed that the council met in adjourned session, the mayor and clerk and three aldermen, naming them, were present, and that on account of no quorum they adjourned to meet on February 20. The minutes of the meeting of the 20th likewise showed that the council met in adjourned session, that the mayor and three aldermen naming them, were present, and that because of no quorum, they adjourned to meet again on February 27. On February 27, the minutes show that the council met pursuant to adjournment, and also that all the aldermen of the city were present, that the ordinance was introduced, read the first time, and under suspension of the rules read the second and third times, and that five of the aldermen voted for it on its passage, and the sixth one voted against it. The acceptance by Tomlinson Brothers reads:

"To the Mayor and City Council of the City of Mena,

Arkansas.

"We, Tomlinson Brothers, hereby accept the contract made by the city council, by Ordinance No. 285, passed, approved and published, February 28, 1913, authorized the lighting of streets and furnishing current to commercial consumers.

"This February 28, 1913.

"Tomlinson Brothers,

"By F. W. Tomlinson."

One of the plaintiffs testified that the number of lights were furnished as stipulated in the ordinance at the price allowed, for all the months charged for, and that no part of the account had been paid. He testified further that they were delayed in the construction of the lighting plant and the installation of the lights by the referendum proceeding to submit the ordinance to the voters for their approval. That immediately after it was disposed of the system was completed and the lights installed and the reduction made in the charge for commercial lighting in accordance with the price fixed in the ordinance, beginning December 1.

He stated also that three members of the council, naming them, designated the location for the lights, and that one or two aldermen had called their attention to certain lights being in bad order, which had been repaired. That all the lights were equal to or in excess of the candle-power required by the contract.

The city requested the court to instruct a verdict in its favor, but the court directed a verdict for plaintiffs for the amount of their claim, and from the judgment thereon the city brings this appeal.

Judgment affirmed.

Chas. A. Zweng and Minor Pipkin, for appellant.

1. The contract should have been made by the board of public affairs. Kirby's Digest, § 5643. It is clothed with the exclusive power to purchase all "supplies," which comprises anything yielded or afforded to meet a want (8 Words & Phrases, 6801), or anything furnished a city, etc. Ib. Light is a supply within the statute. Suth. on St. Const., 392. If not, it is included in "other things." Ib., 437.

2. The improvement involved more than $ 300 and no advertisement was made for bids. 13 P. 249. A city when sued may plead as a defense that the requisite steps to authorize the contract were not taken. 108 Ark. 24; 63 N.E. 711; 98 Ind. 168; 98 N.W. 287. The statute must be followed. 49 Ark. 480; 123 Mo. 546; 14 S.E. 843; 57 A. 837. If not such contracts are void (49 Ark. 480; 3 Ky. Law Rep. 85), and no recovery can be had. 26 N.W. 527. Nor is the city estopped, even where benefits have been received. 82 P. 601; 23 Oh. C. C. Rep. 96. A void contract can not be ratified. 82 Ark. 531; 51 A. 32; 105 N.W. 293.

3. The city council was not legally convened. Kirby's Digest, §§ 5601-5607; 132 F. 668; 44 S.E. 271; 56 Mo.App. 615; 27 Ark. 414; 28 Cyc. 327.

4. The contract was never accepted.

5. Appellees violated the contract and were guilty of gross lathes.

6. There is a fatal variance between the pleadings and proof.

W. Prickett, for appellees.

1. The council properly made the contract. The board of public affairs under § 5643, may have had the authority to make the contract, but the power is not exclusive of the council. The principal can certainly do what an agent or arm can do. An agent can have no power his principal does not possess. It was never intended by the word "exclusive" to deprive the council of its constitutional powers, rights or duties. 55 Cal. 606; Kirby's Dig., § 5473; 80 Ark. 108-138; 61 Id. 397; Kirby's Dig., §§ 5445-5446.

2. A failure to publish or advertise or give notice is a mere irregularity. The contract having been performed in good faith and the city having received the benefits, is estopped from denying the regularity of the proceedings. 29 Am. Rep 134. A municipal corporation is subject to estoppel in pais by the acts...