The City of Concordia v. Hagaman

• Decision Date: 01 May 1895
• Citation: 1 Kan.App. 35,41 P. 133
• Parties: THE CITY OF CONCORDIA v. J. M. HAGAMAN et al
• Court: Kansas Court of Appeals

41 P. 133

1 Kan.App. 35

THE CITY OF CONCORDIA v. J. M. HAGAMAN et al

Court of Appeals of Kansas, Northern Department, Central Division

May 1, 1895

Opinion Filed July 6, 1895.

MEMORANDUM.--Error from Cloud district court; F. W. STURGES judge. Action by James M. Hagaman and others against the city of Concordia. Judgment for plaintiffs; defendant brings error. Affirmed. The nature of the action and the material facts are stated in the opinion, filed July 6, 1895.

Judgment affirmed.

Hugh Alexander, city attorney, for plaintiff in error; Pulsifer & Alexander, of counsel.

John W Sheafor, and James M. Hagaman, for defendants in error.

GARVER J. All the Judges concurring.

OPINION

GARVER, J.:

This was an action brought by the defendants in error against the city of Concordia, to recover a balance alleged to be due for certain services performed for the city in revising, compiling, and publishing in pamphlet form the city ordinances. This work was done under a special contract entered into between the defendants in error and the mayor and council of the city, the city agreeing to pay therefor one-half the legal rate prescribed by law for the publishing of city ordinances in a newspaper. At the time the contract was made and the services were performed, J. M. Hagaman was a member of the city council of Concordia, and he and his two sons, as partners, were engaged in the newspaper and job printing business in that city. The work contracted for was well done, in a manner satisfactory to the mayor and council, and the compilation of the ordinances was received and used by the city. At the contract price the work amounted to $ 468, of which sum the city paid $ 200, and refused to pay any more. The court found that the work was reasonably worth $ 300, and gave judgment for that sum, less the $ 200 paid. The bill of particulars alleged that the services were reasonably worth the amount sued for, being the same as the contract price. The city defended by claiming that the contract entered into was "in violation of law, and was illegal and forbidden both by statute and by common law, on grounds of public policy, and that therefore plaintiff could recover nothing for the work done, either the contract price or the reasonable value thereof."

Counsel for the city rely, in the first place, upon P 2466, General Statutes of 1889, as prohibiting the contract in question and barring any recovery. This section is § 4 of chapter 132, Laws of 1867, and provides--

"That all officers, state and county, and all officers appointed or elected for the purpose of overseeing and directing any of the public improvements of the state, and all officers holding and exercising any office of trust or profit under and by virtue of any law of the state, be and they are hereby prohibited from taking any contract, or performing or doing, or having performed or done for their own profit, any work in and about the office holden by them, or in or about any work over which they have in whole or in part the supervision, direction or control, and from furnishing any materials used in any such work. . . ."

The act is entitled "An act to restrain state and county officers from speculating in their offices." On the part of defendants in error it is contended that this section cannot be construed so as to include city officers. With this contention we agree. The only language in the section quoted that can be held to be broad enough to include a city official is that contained in the phrase, "all officers holding and exercising any office of trust or profit under and by virtue of any law of the state." Were it not for the restrictive title of the act, this language would warrant the construction claimed by the city. The legislature, however, saw fit, by the title, to limit the provisions of the act to state and county officers. It would have been an easy matter to have made the title comprehensive enough to include all public officials. The fact that the title was thus limited, clearly indicates that it was the legislative intention to restrict the act to these two classes of officers. Had this section made express reference to city officials, it would, to that extent, have been unconstitutional as violative of § 16, art. 2 of the constitution, which requires that the subject of every bill "shall be clearly expressed in its title." As said by Mr. Justice BREWER, in The State, ex rel., v. Bankers' Association, 23 Kan. 499:

"The constitution has said that the title must be an index to the law, and courts may not sanction as a valid enactment any part of a statute to which the finger of the title does not point. If we should attempt to enlarge the title, we should defeat the very purpose of the constitutional intention, which was to make the title of the bill notice of all contemplated legislation."

Whatever might be said as to the scope of this section if considered alone, when it is read in connection with the title of the act it cannot be construed so as to include a class of officials entirely distinct from "state and county officers." By no reasonable construction can a city councilman be held to be either a state or a county officer.

Our attention is called to the cases of Lawrence v. Killam, 11 Kan. 499, and Weston v. Lane, 40 id. 479, in which it is claimed, by counsel for the city, that the supreme court has given to this statute the broad construction now contended for. An examination of those cases shows that no such question was in controversy, or decided, in either of them. The court, by common consent, seems to have assumed the correctness of the construction conceded in these cases. Hence, we do not think that we are precluded by anything said therein not in accord with the views of this court, now that the application of the statute is challenged.

A more serious question is the one raised by the objection to the court granting any relief to the defendants in error, on the ground that the contract entered into is illegal and void, as being against public policy, independently of any special statute on the subject. We think the court below correctly held the contract in question not binding upon the city. While, perhaps, not absolutely void, it was, at least, voidable at the option of the city, and at any time before its execution the city could have refused to carry it out. One of the plaintiffs below, J. M. Hagaman, as councilman, was acting in the capacity of agent or trustee for the city. As such, it was his duty to supervise, and exercise his best judgment upon, all contracts entered into on behalf of the city. It was inconsistent with that duty for him to stipulate as to the terms for doing a thing for the city which his office required that he, as a representative of the city, should see done well and faithfully, and on the best terms.

There is little conflict in the decisions of the courts upon this proposition. Considerable diversity of opinion, however exists upon the question whether the courts will allow compensation on the quantum meruit for services actually performed under such contract, and which have been appropriated for the benefit of the principal. On the one hand, it is claimed that there can be no recovery upon the implied promise to pay what the services were reasonably worth, upon the ground that there can be no implied promise where there is no power to contract, or where the...