Nat'l Tube Works Co. v. City of Chamberlain

• Decision Date: 15 February 1888
• Citation: 5 Dak. 54,37 N.W. 761
• Parties: National Tube Works Co. v. City of Chamberlain.
• Court: South Dakota Supreme Court

37 N.W. 761

5 Dak. 54

National Tube Works Co.

v.City of Chamberlain.

Supreme Court of the Territory of Dakota.

February 15, 1888.

Appeal from district court, Brule county; Louis K. Church, Judge.

Action by National Tube Works Company against the city of Chamberlain. Plaintiff recovered judgment, and defendant appeals.Stroube & Drury, for appellant. Goodykoontz, Kellam & Porter and George C. Squiers, for respondent.

THOMAS, J.

This action was instituted by the plaintiff upon a warrant issued to it by the city of Chamberlain for the sum of $1,600, bearing date the 15th of December, 1883, the consideration for which was certain pipes used in the construction of water-works in and by said city. The court found the purchase by the city, the delivery of the pipes, the acceptance and appropriation of them in the construction of its water-works, and the continued and present use of them by said city; and the proof shows that on the 24th day of October, 1884, there was paid on said warrant by the said city the sum of $75. There is no controversy about the facts, but the claim was resisted below on the alleged ground that the city had no authority to contract for said articles without having first passed an ordinance by the city council authorizing it to be done. The case was tried to the court, by consent, without a jury, and judgment rendered in favor of the plaintiff. It is sought by appellant to reverse that judgment in this court upon three grounds, to-wit: (1) That the city council of Chamberlain did not pass an ordinance authorizing the construction of water-works, or the purchase of the articles for which said warrant was given; (2) that the judge who tried the case below made no findings of fact or conclusions of law preceding the judgment; (3) that the judgment was not rendered in the district in which the case was pending and tried.

As to the first point it is admitted that there was no ordinance passed by the city council on the subject of erecting water-works, or the purchase of material therefor. The question then is, was it necessary that such should have been done in order for the city council to make the contract sued on? An ordinance is simply another name for a law or statute, except that it is an enactment of an inferior legislative body, such as a city council. The corporation derives its authority from the statute creating it, and can confer no authority upon itself by the enactment of an ordinance. The powers and duties of the city council of the city of Chamberlain are of two kinds,-legislative and administrative; legislative, to pass laws for the general government of the people within its corporate limits; administrative, to transact the business and financial affairs of the city, and make and enter into contracts to that end. This is not strictly a question of ultra vires, for it is admitted that the city council has the power, under the charter, to build and maintain a system of water-works, and contract for that purpose. But counsel for appellant insists that, before such authority could be exercised, it was necessary to pass an ordinance for that purpose. This might be true if the city charter put such a limitation upon the powers of the council on this subject, expressed or implied. After a careful examination of that instrument we find no such limitation,...