Sluder v. City of San Antonio

• Decision Date: 22 February 1928
• Docket Number: (No. 876-4373.)
• Citation: 2 S.W.2d 841
• Parties: SLUDER v. CITY OF SAN ANTONIO.
• Court: Texas Supreme Court

Page 841

2 S.W.2d 841

SLUDER v. CITY OF SAN ANTONIO.

(No. 876-4373.)

Commission of Appeals of Texas, Section B.

February 22, 1928.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by J. T. Sluder against the City of San Antonio. Judgment denying recovery was affirmed by the Court of Civil Appeals (269 S. W. 463), and plaintiff brings error. Reversed and rendered.

Marcus W. Davis, George G. Clifton, and John H. Bickett, Jr., all of San Antonio, for plaintiff in error.

Jos. Ryan, City Atty., T. D. Cobbs, Jr., and W. B. Halbig, all of San Antonio, for defendant in error.

LEDDY, J.

Hon. O. B. Black was mayor of the city of San Antonio in 1922. In the spring of that year he sought to inaugurate certain projects, including the acquisition by the city of a municipal gas plant, a proposed election to authorize the issuance of bonds with which to supplement an existing fund for building a municipal auditorium, and a proposed election at which certain charter amendments were to be submitted to the voters of the city for adoption or rejection. In connection with these projects he deemed it advisable to secure the legal advice and assistance of an attorney specially skilled in this particular work, and to that end he engaged Judge J. T. Sluder, a practicing attorney of the San Antonio bar, to prepare all such ordinances, contracts, and other papers as might be necessary in connection with such projects, and to advise and counsel with the city authorities in regard to such matters.

The trial court found, and the Court of Civil Appeals held the facts warranted such findings, that appellant performed the services contemplated under his employment by the mayor, and that the services rendered under such employment were reasonably worth the amounts demanded therefor by appellee, to wit, in the municipal gas plant project, $1,500; in the municipal auditorium matter, $250; and in the charter amendment plan, $1,500. It appears from the evidence that Judge Sluder's services in these matters were rendered with the full knowledge, consent, and acquiescence of at least a majority of the members of the board of city commissioners, as well as the mayor.

The suit instituted by Judge Sluder was for compensation on an implied contract on behalf of the city to pay the reasonable value of the services rendered under such employment. The trial court denied a recovery, and entered judgment in favor of the city for $1,500 it had theretofore paid Judge Sluder under such contract and upon appeal its judgment was affirmed by the Court of Civil Appeals.

The basis of the trial court's denial of liability of the city rests upon the provisions of sections 20 and 40 of the charter of the city of San Antonio, which, in so far as pertinent here, are as follows:

"Section 20. The board of commissioners, or a majority thereof, may act by resolution in all cases except where an ordinance is by this act required; provided, that no contract on the part of the city shall be made or authorized nor any money appropriated from the funds of the city, * * * otherwise than by ordinance."

"Section 40. Any debt hereafter contracted by any officers of the city, or by any person on account of the city, the payment of which has not been previously provided for by ordinance duly adopted by the city council, shall be absolutely null and void and uncollectible at law or in equity, and it shall be the duty of the city attorney to plead this statute to defeat the collection or enforcement of any such claim or debt."

The City of San Antonio contends that inasmuch as the above charter provision denies the right of said city to make any contract except as therein provided, and expressly declares all contracts not made in conformity thereto void, no recovery can be had upon an implied contract for the reasonable value of the services rendered. Plaintiff in error insists that even though the contract made by him with the mayor was not in conformity with the charter provisions, and therefore void, nevertheless, the subject-matter thereof being one in which the city of San Antonio had the legal right to make a contract, and the undisputed evidence showing that the services were of the reasonable value of the amount claimed, and rendered by him at the special instance and request of a city official, and performed with the knowledge, consent, and acquiescence of a majority of the governing body of said city, that there is an implied contract on the part of the city to pay the reasonable value of the benefits the city has received under the plaintiff in error's employment, and the city is estopped to deny the validity of such contract.

The case mainly relied upon by the defendant in error to sustain its position is that of City of Bryan v. Page, 51 Tex. 532, 32 Am. Rep. 637. It appears in that case that the city charter required contracts to be made by ordinance. A firm of attorneys was employed by the mayor of the city of Bryan without complying with the charter provision. In suit for compensation the Supreme Court held that the city officials were without power to bind the city to pay for legal services and that the law did not imply any such contract against the city. This decision would be authority for denying plaintiff in error a right of recovery were it not for the fact that the rule laid down in this case was subsequently modified by the Supreme Court in the case of City of San Antonio v. French, 80 Tex. 575, 16 S. W. 440, 26 Am. St. Rep. 763. Judge Gaines, after quoting fully from the case of Bryan v. Page, supra. expressly permitted a recovery upon an implied contract for the reasonable value of the premises used by the city of San Antonio where it had merely held over after the termination of its authorized contract. In authorizing a recovery on an implied contract, Judge Gaines said:

"It may be that when a municipal corporation has received the benefit of a contract which it had the power to make, but which was not legally entered into, it may be compelled to do justice and to pay the consideration, or at least to pay for what it has received. In such cases it is said that the law will imply a contract. * * * As said by Mr. Justice Field in the case of the San Francisco Gas Co. v. San Francisco, 9 Cal. 453, `Where the contract is executory the corporation cannot be held bound unless the contract is made in pursuance of the provisions of its charter; but where the contract is executed and the corporation has enjoyed the benefit of the consideration an implied assumpsit arises against it.'"

Since the decision in the French Case our courts have uniformly announced the doctrine that where a county or municipality receives benefits under a contract, illegal because not made in conformity with the Constitution or statute of the state, or charter provision of the city, it will be held liable on an implied contract for the reasonable value of the benefits which it may have received. In other words, while such contracts are void, and no recovery is permitted thereon, our courts hold that common honesty and fair dealing require that a county or municipality should not be permitted to receive the benefit of money, property, or services, without paying just compensation therefor. Under such circumstances, a private corporation would clearly be liable under an implied contract. There can be no sound reason why the same obligation to do justice should not rest upon a municipal corporation.

An analysis of the decisions rendered since the decision of the French Case shows clearly that the rule therein laid down has been steadily adhered to. The Constitution and statutes of this state require that all disbursements of a county should be made by the treasurer "only upon previous orders of the commissioners' court." In the case of Boydston v. Rockwall County, 86 Tex. 234, 24 S. W. 272, it appeared that a disbursement was made by the county treasurer by purchasing bonds of another county without any authority of the commissioners having been previously given. The court held that the contract was illegal and void, but at the same time held the county liable because it had received and retained the benefit of such contract of purchase. In passing on the question it was said:

"A contract made in the name of the commissioners' court by an unauthorized party may be ratified by a formal order; but such order is not necessary to such ratification. When the fact of the contract came to the knowledge of the commissioners' court, and they elected to hold the bonds or take any other benefit under them, or to carry out its provisions, they ratified it, and the county was estopped to deny its validity. Kneeland v. Gillman, 24 Wis. 42; Peterson v. Mayor, 17 N. Y. 453; Town of New Athens v. Thomas, 82 Ill. 259; Tyler v. Trustees, 14 Or. 485 ; Fisher v. La Rue, 15 Barb. [N. Y.] 323."

In the case of Mineralized Rubber Co. v. City of Cleburne, 22 Tex. Civ. App. 621, 56 S. W. 220, the city authorities purchased certain fire hose from the appellant. The contract of purchase was held to be directly within the provision of article 11 of the Constitution, which prohibits the creation of a debt "unless provision is made, at the time of creating the same, for levying and collecting a sufficient tax to pay the interest thereon and provide at least 2 per cent. as a sinking fund." Section 7. This contract, being expressly forbidden by the Constitution, was held to be absolutely void; yet it was determined that appellant could recover not only the hose itself, but was also entitled to recover compensation for the use of the hose while in the city's possession. In passing on this question, the court said:

"We think appellant entitled to compensation for the use of the hose while in appellee's possession. Appellee was entitled to be reimbursed for the amount of freight it had paid on the hose, and it was incumbent upon appellant to offer, by plea, to return said amount,...