Roberts v. City of Fargo

• Decision Date: 25 April 1901
• Citation: 86 N.W. 726,10 N.D. 230
• Court: North Dakota Supreme Court

86 N.W. 726

10 N.D. 230

LEE A. ROBERTS, et al v. CITY OF FARGO, et al

Supreme Court of North Dakota

April 25, 1901

Appeal from District Court, Cass County; Pollock, J.

Action by Lee A. Roberts and others against the city of Fargo and others to enjoin defendant from disbursing its funds in payment of street lighting under an alleged ultra vires contract. From a judgment dismissing the bill, plaintiffs appeal.

Reversed.

Judgment reversed, and judgment entered for the relief demanded in the complaint, together with the costs and disbursements.

Ball Watson & Maclay, for appellants.

Appellants are entitled to maintain this action. Engstad v. Dinnie, 8 N.D. 1; Mock v. Santa Rosa, 58 P. 826. No appropriation concerning the expenditure to be incurred under the contract was previously made by the city council. § § 2262, 2264, 2190, Rev. Codes, Pryor v. Kansas City, 54 S.W. 504; Blair v. Lantry, 31 N.W 790; Rubber Co. v. Village, 59 N.W. 513; McElhinney v. City, 49 N.W. 705; City v Waterworks Co., 76 N.W. 906; City v. Downing, 81 N.W. 509; Garrison v. Chicago, 7 Biss. 480; Smith Canal Co. v. City, 36 P. 844; Gas Co. v. Leadville, 49 P. 268; Indianapolis v. Wann, 42 N.E. 901; Putnam v. City, 25 N.W. 330; Tenant v. Crocker, 48 N.W. 577; City v. Norton, 63 F. 357; Kiichli v. Minneapolis, 59 N.W. 1088; City v. Land, 35 At. Rep. 136; Jutte v. Altoona, 94 F. 61; Bladen v. Philadelphia, 60 Pa. 464; Philadelphia v. Flannigan, 47 Pa. 21; Kingsland v. Mayor, 5 Daly, 448; Weigel v. County, 32 S.W. 116; City v. Dessaint, 9 S.W. 593; Rubber Co. v. City, 56 S.W. 220; City v. Laurant, 23 So. Rep. 185; Irrigation District v. McNeal, 83 N.W. 847; Engstad v. Dinnie, 8 N.D. 1. The financial system mapped out by the statutes of North Dakota for the government of its cities, does not permit the making of contracts for longer than one year, for the reason that appropriations can be made only for the expenses of one year; and no contract can be made until the corresponding appropriation therefor has also been made. State v. Bayonne, 26 At. Rep. 81; State v. Medberry, 7 O. St. 522; Findlay v. City of Pendleton, 56 N.E. 649; Kitchli v. Minneapolis, 59 N.W. 1088; City v. Waterworks Co., 32 S.E. 907. Authority to make contracts cannot be implied under the terms of § § 2261 to 2264, Rev. Codes. In the face of the language used, mere implied authority would not be sufficient. Kiichli v. Minneapolis, 59 N.W. 1088; City v. Waterworks Co., 76 N.W. 908; Gas Co. v. Leadville, 49 P. 268. There can be no estoppel in the case of contracts such as the one in question. Engstad v. Dinnie, 8 N.D. 11; Goose River Bank v. Township, 1 N.D. 28; State v. Getchell, 3 N.D. 243; Farmers' Bank v. School District, 6 Dak. 255; McDonald v. Mayor, 68 N.Y. 23; Rubber Co. v. Village, 59 N.W. 513; San Diego Water Co. v. City, 59 Cal. 517; McBrien v. City, 22 N.W. 206; Canal Co. v. City, 36 P. 844; Indianapolis v. Wann, 42 N.E. 904; City v. Land, 35 At. Rep. 136; District v. McNeal, 83 N.W. 847.

Newman, Spalding & Stambaugh, for respondent.

The city has power to provide for lighting its streets. § 2148, Subd. 1, Rev. Codes. The authority conferred by this section is unlimited by any conditions, restrictions or limitations, and may be exercised by the council in its discretion as to its mode, manner or detail; and such discretion cannot be questioned by the taxpayer. Connery v. Company, 7 So. Rep. 8. If the contract was voidable as to certain portions of it, the city might either ratify it or avoid it; and it can only be voidable as to those portions which were executory. East St. Louis v. Gas Light Co., 98 Ill. 415; Columbus Water Co. v. Columbus, 28 P. 1097. The contract in question is neither void nor voidable, but valid in its entirety and for its full term. Seitzinger v. Tamaqua, 41 At. Rep. 454; Bailey v. Philadelphia, 39 At. Rep. 494; City of Hartford v. Co., 32 At. Rep. 925; New Orleans Gas Co. v. New Orleans, 7 So. Rep. 559; Illinois Trust Co. v. Arkansas City, 40 U. S. App. 257; City of Indianapolis v. County, 66 Ind. 396; City v. Gardner, 97 Ind. 1; City v. Gaslight Co., 31 N.E. 573; City v. Water Co., 172 U.S. 1. No expense under the contract in question is or can be incurred until an indebtedness arises, then an annual appropriation is sufficient for the purposes of the contract, as no indebtedness arises under it until the company has furnished the city with the lights contracted for, for the full term of one month at a time. The indebtedness, in other words, accrues monthly and the expense is incurred monthly and no appropriation is necessary other than the regular appropriations for regular expenses of the city, the lighting of the streets being an ordinary current expense. Carlisle v. City, 29 N.E. 556; 141 Ill. 445; Defiance Water Co. v. Defiance, 90 F. 753; Hill v. Indianapolis, 92 F. 467; Monroe Water Co. v. Heath, 73 N.W. 234; Black v. City, 34 At. Rep. 354; Wade v. Oakmont, 30 At. Rep. 959; Capital City Water Co. v. Montgomery, 9 So. Rep. 343; New Orleans Gas Co. v. New Orleans, 7 So. Rep. 559; McLean v. Frence, 44 P. 358; Utica v. Utica Co., 31 Hun. 430; Merrill Ry. Co. v. Merrill, 49 N.W. 965; Weston v. Syracuse, 17 N.Y. 110; Valparaiso v. Gardner, 97 Ind. 1, 49 Am. Rep. 416; East St. Louis v. Gaslight Co., 98 Ill. 415; Smith v. Dedham, 10 N.E. 782; Crowder v. Sullivan, 28 N.E. 94; Salino v. Neosho, 30 S.W. 190; Grant v. Davenport, 36 Ia. 365; Lott v. Waycross, 11 S.E. 558; Burlington Water Co. v. Woodard, 49 Ia. 58; Walla Walla v. Walla Walla Co., 172 U.S. 1. The contract in question provides that in each year the city shall appropriate and levy a sufficient sum to pay the expenses under the contract, and this agreement is valid, binding and enforceable. Monroe Water Co. v. Heath, 72 N.W. 234.

OPINION

WALLIN, C. J.

The record in this action discloses the following facts: The plaintiffs, who are freeholders and taxpayers residing in the city of Fargo, bring this action to annul a certain contract in writing made on August 6, 1895, between said city of Fargo and the defendant the Fargo Gas & Electric Company, whereby the latter agreed to furnish electric light for lighting said city for a period of 10 years upon certain terms set out in said contract. The city of Fargo at all times in question was, and still is, a municipal corporation organized under Chap. 28 of the Political Code. See Rev. Codes 1895, § § 2108-2343. The mayor, treasurer, and auditor of said city are also made parties defendant. The Fargo Gas & Electric Company is a private corporation, formed for the purpose of manufacturing and selling gas and electricity, and having its principal office in said city of Fargo. The complaint sets out the contract in question as follows: "This contract, made and entered into pursuant to resolution of the city council of the city of Fargo adopted May 5, 1895, this 6th day of August, 1895, by and between the Fargo Gas & Electric Company, a corporation organized and doing business under the laws of the state of North Dakota, party of the first part, and the city of Fargo party of the second part, witnesseth: The party of the first part, for and in consideration of the sum of five hundred dollars ($ 500) per month, to be paid monthly by the party of the second part, agrees to furnish to the party of the second part for the term of ten years from and after the 19th day of August, 1895, with fifty are electric lights of 2,000 candle power each, to be kept burning each and every night during said term of ten years from dark until daylight: provided, that a pro rata reduction shall be made in any month for the number of hours any light or lights shall fail from accident or any other unavoidable cause to be kept burning as herein stated; such failures not to work a forfeiture of this contract. But if the party of the first part shall refuse upon reasonable notice to keep said lights burning as previously agreed for a longer term than is reasonably necessary to make any necessary repairs for that purpose and to put said lights in order, then said party of the second part may, at its option, cancel this contract. Said party of the first part shall suspend such of said lights as are not now in use under its present contract with said second party at such points upon the public streets of said city within a reasonable radius as shall be directed by said second party as soon as practicable, and, in case said lights are not so suspended on or before the 19th day of August, then the pro rata reduction hereinbefore provided for shall be made for all such lights as shall not then be ready for use until the same are in actual use. Said lights shall be suspended in the same manner as those now in use, and on Broadway and Front S. shall be placed not less than twenty-five, and on all other streets not less than thirty-five, feet above the surface of the street. Said party of the first part further agrees to furnish to said party of the second part such lights as it may order in excess of said fifty lights at the rate of $ 120.00 per year in addition to said $ 500.00 per month agreed to be paid for said fifty lights. Said party of the second part agrees during the term of this contract to take and use not less than said fifty lights, and in each and every year to appropriate and levy a sufficient sum to meet the requirements of this contract, and to pay the price herein agreed on for all lights used hereunder each month at the monthly meeting of the city council. It is further agreed that, in case of removal of any light or lights from one place to another after the same shall have been located and suspended, said city shall pay the actual and necessary expense for such removal to the party of the first part. It is further agreed that the party of the first part shall furnish...