Lincoln Land Co. v. Vill. of Grant

• Decision Date: 08 December 1898
• Citation: 57 Neb. 70,77 N.W. 349
• Parties: LINCOLN LAND CO. v. VILLAGE OF GRANT.
• Court: Nebraska Supreme Court

57 Neb. 70

77 N.W. 349

LINCOLN LAND CO.

v.VILLAGE OF GRANT.

Supreme Court of Nebraska.

Dec. 8, 1898.

Syllabus by the Court.

1. An ordinance adopted by a board of village trustees in valid only as to subjects clearly expressed in the title.

2. A contract providing for the rental of five hydrants is not a subject of legislation expressed in the following title: “An ordinance authorizing the Lincoln Land Company to construct and maintain a system of water works, and use the streets, alleys, avenues, and public grounds for laying their mains and pipes in the town of Grant, in Perkins county, Nebraska.”

3. A contract for the rental of five hydrants, contained in an ordinance entitled as aforesaid, is void.

4. Where a municipal corporation receives and retains substantial benefits under a contract which it was authorized to make, but which was void because irregularly executed, it is liable in an action brought to recover the reasonable value of the benefits received.

5. In such an action it is unnecessary to establish a ratification of the contract. Gutta-Percha & Rubber Mfg. Co. v. Village of Ogalalla, 59 N. W. 513, 40 Neb. 775, and Tullock v. Webster Co., 64 N. W. 705, 46 Neb. 211, distinguished.

Error to district court, Perkins county; Grimes, Judge.W. S. Morlan and J. W. Deweese, for plaintiff in error.

C. C. Flansburg and C. P. Logan, for defendant in error.

SULLIVAN, J.

The Lincoln Land Company sued the village of Grant in the district court of Perkins county to recover the sum of $900, alleged to be due as rental for 15 hydrants. On demurrer to the petition, judgment was rendered in favor of the defendant, and the plaintiff prosecutes error to this court.

From the averments of the petition it appears that on April 13, 1889, the board of trustees of the defendant village adopted an ordinance authorizing the plaintiff to construct and maintain a system of waterworks in said village, and to use the streets and alleys thereof for the term of 25 years for the purpose of laying down the necessary mains and pipes. The ordinance further provided that the company should furnish the village the use of 15 hydrants free of cost for a period of 4 1/2 years immediately following the completion of the system, and that for the 20 1/2 years next ensuing the village should pay to the company an annual rental of $60 each for not less than 15 hydrants. The plant was constructed, and the period during which water was to be furnished free expired April 1, 1894. During the following year the village used the 15 hydrants, but has refused to pay therefor the rental fixed by the ordinance. On behalf of the defendant it is insisted that the provision of the ordinance in relation to the rental of hydrants is void, for the reason that there was no antecedent appropriation to cover the expenditure, as required by section 86, art. 1, c. 14, Comp. St. Our attention is especially directed to section 89 of the village charter, which is as follows: “No contract shall be hereafter made by the city council or board of trustees, or any committee or member thereof; and no expense shall be incurred by any of the officers or departments of the corporation, whether the object of the expenditure shall have been ordered by the city council or board of trustees or not, unless an appropriation shall have been previously made concerning such expense, except as herein otherwise expressly provided.” The section quoted, in connection with other kindred provisions of the act, evinces a clear legislative purpose to confine the current expenditures of municipalities of the class here in question to their current revenues, and to prevent the creation of long-time obligations, which may prove burdensome in the future, although prudent and provident enough when viewed in the light of the present conditions. It would be difficult indeed to choose more explicit and imperative language to express the idea that municipal authorities have no power, unless expressly granted, to create liabilities extending beyond the current year. The legislative policy to leave future municipal revenues unincumbered being frequently declared and strongly accentuated, as will appear from an examination of sections 86-89 of the charter (Comp. St. c. 14, art. 1), the power to make a valid contract imposing on the village a serious financial burden during a quarter of a century ought not to be derived as a mere probable inference from an ambiguous statute. But in the case of City of North Platte v. North Platte Waterworks Co. (Neb.) 76 N. W. 906, the existence of such power was assumed without discussion. What was said on the subject is here subjoined: “By subdivision 15 of section 69 of the chapter just referred to [Comp. St. art. 1, c. 14], it is provided that cities of the class in which North Platte is embraced may enact ordinances, among other things, ‘to make contracts with and authorize any person, company, or corporation to erect and maintain a system of waterworks and water supply, and to give such contractors the exclusive privilege for a term not exceeding twenty-five years, to lay down in the streets and alleys of said city, water mains and supply pipes, and to furnish water to such city or village and the residents thereof, and under such regulations as to price, supply, rent of water-meters, as the council or board of trustees may from time to time prescribe by ordinance for the protection of the city.’ The power to contract with individuals or corporations for a supply of water to be furnished for the use of the city for a term not exceeding 25 years implies the power to provide that payments shall be made as the right to receive them accrues, without an appropriation having been previously made with reference to the several payments as they shall mature.” The writer concurred in the opinion from which the foregoing extract was taken, but is now convinced, as the result of a more critical examination of the statute in question, that the conclusion reached was incorrect, and that a city or village is only authorized to give an individual, company, or corporation an exclusive privilege for 25 years to lay down water mains and supply pipes in the public streets and alleys, and also the exclusive right for the same period to furnish water to the municipality and its inhabitants on such terms as may be fixed by ordinance from time to time. That the terms should be reasonable is, of course, implied. Immediately following the provision of the statute contained in the foregoing excerpt, it is declared that “the right to supervise and control such corporation as above shall not be waived or set aside.” Considering subdivision 15 of section 69 in connection with sections 86-89, it seems to be entirely clear that municipal authorities are without power to make contracts, concerning either the quantity of water to be furnished or the price to be paid, which shall extend beyond the year in which such contracts are made. If a city or village may by ordinance determine from year to year the quantity of water it will take, and the price it will pay, then the owner of the water plant has at best but a...