City of Plattsmouth v. Murphy

• Decision Date: 19 October 1905
• Citation: 74 Neb. 749,105 N.W. 293
• Parties: CITY OF PLATTSMOUTH v. MURPHY.
• Court: Nebraska Supreme Court

74 Neb. 749

105 N.W. 293

CITY OF PLATTSMOUTH

v.MURPHY.

Supreme Court of Nebraska.

Oct. 19, 1905.

Syllabus by the Court.

An act of the Legislature, amendatory of or supplemental to an unconstitutional law, is unconstitutional and void, and chapter 14, p. 308, Laws 1887, being amendatory of and supplemental to chapter 14, p. 148, Laws 1885, which has been held unconstitutional and void, is also invalid.

A contract entered into by a city in violation of a mandatory provision of its charter is void, and can be ratified only by an observance of the conditions essential to a valid agreement in the first instance.

The maxim, “Ignorantia juris neminem excusat,” applied.

Commissioners' Opinion. Department No. 2. Error to District Court, Cass County; Jessen, Judge.

Action by Hugh Murphy against the city of Plattsmouth. Judgment for plaintiff, and defendant brings error. Reversed.H. D. Travis and J. L. Root, for plaintiff in error.

Matthew Gering, for defendant in error.

ALBERT, C.

This action was brought to recover the balance due on an alleged written contract between the city of Plattsmouth and one Fanning, for the paving of certain streets of that city. The work was performed and accepted by the city, and by the terms of the contract the amount due the contractor therefor was $7,628.38. Of this amount the city paid $7,097.06, but afterward refused to pay the balance. Fanning assigned his claim for the balance to the plaintiff. There was a verdict for the plaintiff, and from a judgment thereon the city brings the case here on error.

Among other defenses it is urged that the contract is void, because it was made in violation of certain mandatory provisions of the charter under which the city was acting at the time the contract was made. Among other violations relied upon to defeat the action is that no estimate of the cost of the improvement had ever been made and submitted to the city council by the city engineer, as required by law, before the contract was made. The evidence shows a history of the contract and of the preliminary steps leadingup to its execution. We have gone over this evidence with care, and it is clear and convincing that no estimate of the cost of the improvement in question was ever made and submitted to the council by the city engineer before the contract was made.

This brings us at once to the question whether the making of such estimates and their submission to the city council were prerequisites to a valid exercise of the power of the city to make the contract, and to determine that question it is necessary to discover the provisions of the charter under which the city was acting at the time, so far as such provisions relate to the matter in hand. The contract was made in 1892, and at that time the city had more than 5,000, but less than 10,000, inhabitants--a fact which stands admitted of record. In 1879 an act was passed and approved, entitled “An act to provide for the organization, government and powers of cities and villages,” which provided that all cities and villages containing more than 1,500 and less than 15,000 inhabitants should be governed thereby. Laws 1879, p. 193. In 1883 there was passed and approved “An act to provide for the organization, government and powers of cities of the second class having more than 10,000 inhabitants.” Laws 1883 p. 130. As the defendant city then, as now, had less than 10,000 inhabitants, it was not affected by this act. In 1885 the Legislature undertook to amend the title to the act of 1883 in such a way as to include cities of the second class having over 5,000 inhabitants. The title to the act is “An act to amend the title and sections 1, 2, 3 and 4, of an act entitled ‘An act to provide for the organization, government and powers of cities of the second class, having more than ten thousand inhabitants.’ ” Laws 1885, p. 148, c. 14. This act was held void in Webster v. City of Hastings, 59 Neb. 563, 81 N. W. 510. Consequently the powers and duties of the defendant city are to be determined without regard to this act. In 1887 an act was passed, entitled “An act to amend section 27 and 58, and to add subdivisions 58 and 59 to section 52 of article 2 of chapter 14, of the Compiled Statutes relating to cities of the second class having over five thousand (5,000) inhabitants, and to repeal said original sections 27 and 58 and all acts and parts of acts in conflict with this act.” Laws 1887, p. 308, c. 14. This act clearly refers to the act of 1885, because there was no other act relating to cities having over 5,000 inhabitants. As we have seen, the act of 1885 was held unconstitutional and void, and it necessarily follows that all acts amendatory or supplemental thereto must fall with it. With the defendant city excluded from the act of 1883, because of having less than 10,000 inhabitants, and the acts of 1885 and 1887 unconstitutional and void, the act of 1879 is the act to which we must look to determine whether the lack of estimates of the cost of the improvement in question is fatal to the contract. Section 20, p. 197, of the act of 1879, so far as material at present, is as follows: “Before the city council shall make any contract for building bridges or sidewalks, or for any work on the streets, or any other work or improvement, an estimate of the cost thereof shall be made by the city engineer and submitted to the council, and no contract shall be entered into for any work or improvement for a price exceeding such estimate; and in advertising for bids for any such work the council...