Town of Magee v. Mallett

• Decision Date: 10 May 1937
• Docket Number: 32732
• Citation: 178 Miss. 629,174 So. 246
• Court: Mississippi Supreme Court
• Parties: TOWN OF MAGEE v. MALLETT

174 So. 246

178 Miss. 629

TOWN OF MAGEE v. MALLETT

No. 32732

Supreme Court of Mississippi

May 10, 1937

Division B

1. MUNICIPAL CORPORATIONS.

Statute authorizing municipalities to acquire, own, and operate airports and "to do all things and perform all acts necessary, proper or desirable to effectuate the full intent and purpose of this act" held to include power and authority to contract and pay for proper or necessary engineering work in connection with airports (Laws 1934 chap. 317).

2. MUNICIPAL CORPORATIONS.

Municipality in absence of statute to the contrary may ratify previously unenforceable contract, which municipality had power to make when work has been done and benefits thereof received.

3 EVIDENCE.

As respects town's liability to engineer for work performed on airport under oral contract, which was subsequently ratified, court would assume that funds were in hand when contract was made, since officers are presumed to have followed law, unless contrary expressly appears (Code 1930 sec. 5979; Laws 1934, chap. 317).

4. MUNICIPAL CORPORATIONS.

Town held liable for engineering work performed on airport under oral contract which was ratified, notwithstanding ratification contained provision that payment to engineer was to be made when funds were available, where in view of lack of showing that funds were not available at time oral contract was made, condition in ratification merely meant that at time of order of allowance funds were not in treasury and hence no warrants payable at once could be ordered, but board of aldermen had duty to make funds available within reasonable time (Code 1930, sec. 5979; Laws 1934, chap. 317).

HON. EDGAR M. LANE, Judge.

APPEAL from circuit court of Simpson county HON. EDGAR M. LANE, Judge.

Action by W. E. Mallett, Jr., against the Town of Magee. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

W. M. Lofton, of Mendenhall, for appellant.

The declaration charges, or rather attempts to charge, that the contract entered into with the said appellee was for certain public work done by him on an airport on certain land directly south of Sanatorium, Mississippi, but fails to show that the said town of Magee had acquired, or was to acquire, any interest in said land, and also fails to show that any notice for the time and manner fixed by law was given by publication thereof in a newspaper published in said Simpson county for a period of three consecutive weeks or for any other period of time.

In order for the town of Magee to have made a valid contract, if this matter had been a subject over which it had jurisdiction it would have been necessary, the amount being $ 300, to have advertised in some newspaper printed and published in said Simpson county for a period of three consecutive weeks, and in order to maintain this suit it would be necessary for the plaintiff, appellee here, to show that all these requirements of the statute were made. This he has completely failed to do.

There is not a single solitary thing in this record to show that the said town of Magee ever attempted to make any sort of a contract with the appellee in this case, and there is nothing to show that it ever intended to do so. But if the said town of Magee had desired to make such a contract, it never resorted to any of the methods prescribed by law to make such contract.

Sections 3531, 3572, Code of 1930.

The municipal authorities are governed and controlled by the same law dealing with boards of supervisors, and in each and every case the law absolutely requires that notice be given as provided for by section 239 of the Mississippi Code of 1930, when the contract for public work amounts to more than one hundred dollars, and this requirement of the statute was not met. That being true the plaintiff absolutely has no cause of action against the Town of Magee.

Bridges & Hill v. Board of Supervisors, 58 Miss. 817.

Contracts made with boards of supervisors are evidenced only by the entries on their minutes and boards of supervisors speak only through their minutes. And we insist that municipalities are governed and controlled by the same law, and that it applies with full force and effect against municipal boards.

Sections 2559 and 2560, Code of 1930.

Allen C. Thompson, of Jackson, for appellee.

Could the town of Magee enter into a contract, either verbal or written, with W. E. Mallett, Jr., appellee, for work as alleged in the declaration, a contract that would be legal and enforceable? The answer is "Yes."

Chapter 317, Laws of 1934.

It is clearly the law that a municipality can "acquire" an airport, and can make contracts in furtherance thereof, and can do all things and perform all acts necessary, proper or desirable to effectuate the full intent and purpose of this act. Applying the law to the present case the town of Magee, appellant, had the right to acquire and build an airport, even outside of the city limits, and had the right to contract with W. E. Mallett, Jr., for his services in beginning this work.

The appellee contends that no technical requirements were necessary for the contract to be enforceable. But even if the contract sued on was unenforceable by reason of noncompliance with some statutory requirement as the counsel for appellant claims, as the appellant was vested with power to bind itself by that contract, it ratified that contract, or estopped itself to deny the validity thereof, by procuring the performance of the work contracted for, by accepting the benefit of such performance, by paying part of the contract price for work contracted for, and by agreeing to pay the appellee the sum, although they did want to wait until funds are available. Where a contract is one which a municipality has power to make, though when the contract was attempted to be made, it was unenforceable by reason of some irregularity, there is no sound reason in law or morals for permitting the municipality to escape liability for the completed work contracted for, on the ground that the municipality is incapable of ratifying the contract or by its conduct estopping itself to deny liability for the stipulated price of that work.

City of Jackson v. Bank & Trust Co., 112 Miss. 537; First National Bank v. Emmetsburg, 157 Iowa 555; 3 McQuillin Municipal Corporations (2 Ed.), sec. 1357; 19 R. C. L. 1075.

The better line of reasonable authorities holds that where a municipality had the power and authority to undertake the project, it was undertaken with good faith, and the city received the benefits therefrom or failed through its own actions to receive the benefits therefrom, that the municipality should be compelled to pay.

Red Oak First National Bank v. Emmetsburg, 157 Iowa 555, 138 N.W. 451, L. R. A. 1915A, 982; Schueler v. Kirkwood, 191 Mo.App. 575, 177 S.W. 760; Church v. Vicksburg, 50 Miss. 601; Jones Bayou v. Sillers, Clark & Sillers, 129 Miss. 13.

The cases listed below are a few of the more reasonable authorities that hold that where a municipality had the power to and the authority to undertake the project, it was undertaken with good faith, and the city received the benefits therefrom, that the municipality should be compelled to pay.

Argenti v. San Francisco, 16 Cal. 255; Warren Bro. v. Boyle, 42 Cal.App. 246, 183 P. 706; McQuire v. Rapid City, 6 Dak. 346, 43 N.W. 706; National Tube Works Co. v Chamberlain, 5 Dak. 54, 37 N.W. 761; McGovern v. Chicago,...