City of Leavenworth v. Rankin

2 Kan. 357

• Court: Supreme Court of Kansas
• Decided: February 15, 1864
• Status: Published

Opinion

By the Court,

Ckozier, C. J.

Upon the trial of this cause in the Court below, the only instruction giv&n to the jury was the following:

h Under the pleading the plaintiff is entitled to recover' for the number of cubic yards excavated, at twenty cents pgr cubic yard, and for the number of cubic yards filled at twenty cents per cubic yard.”

In so charging the jury, the Court decided that the agreement set out in the paper upon which the action was founded, embodied a valid contract, and should be construed as the language of the instruction indicates; in both of which it is claimed that the Court erred.

At the time the paper was signed the City of Leavenworth, in its corporate capacity had power under its charter to provide for grading streets and for levying and collecting taxes for this purpose upon the adj acent property to the middle of the block; but no such tax was to be levied without the consent of a majority of the resident owners to be affected thereby. To carry out these provisions, ordinance No. 129 had been enacted, published and was in full force. It required, before a contract should be entered into, that a petition requesting the council to order a grade to be made, signed by a majority of the resident property owners to be affected by the tax for the proposed improvement, should be presented to the council. It also provided that every contract made in pursuance of its provisions, should contain a stipulation that the city should in no event be liable for the cost of the work. The petition filed in the Court below, alleges that no such petition was presented to the council, and an inspection of the paper sued upon, shows that no such stipulation was incorporated into it; yet it is claimed that the agreement was a valid contract, or if not valid at its inception, there was such a subsequent ratification by the council as cured any original defect therein. Such seems to have been the opinion of the Court below.

Municipal corporations are creations of the law, and possess no powers except such as are conferred by law. They act under prescribed rules, and must act in accordance with them. , They cannot in any sense be said to act as natural persons. When they undertake to make contracts they must observe the regulations prescribed in that behalf, else there will be no contract, and no subsequent act can cure the defect. Their power to contract must be delegated' by law, while that-of a natural person is inherent. The law affects the contracting power in tho former, by conferring it and regulating its exercise; in the latter by restraining that which is inherent. Some acts of corporations, other than those created for governmental purposes, are to some extent and for some purposes estimated, measured and construed by the same rules that apply to the acts of individuals ; but municipal corporations can exercise only conferred powers, and must exercise them according to the prescribed rules. When the law prescribes a pre-requisite to their ability to contract, the obligation to observe it cannot with impunity be disregarded. Nor wilL a subsequently attempted ratification, cure the defect. Such a construction would render nugatory the most salutary safeguards, and in effect make municipal corporations omnipotent. They must contract if at all, within the prescribed- limits, and according to the prescribed forms. They take no powers by implication—certainly not the power to ratify an act they had no power to perform.

It is said that because the seal of the corporation is affixed to the paper sued upon, that it is an estoppel of all inquiry into the power of the corporation to make the contract. Such a rale does not apply to municipal corporations, and there is no reason why it -should apply to them. Their charters are usually public laws; their ordinances are .published before taking effect; and all their business is conducted in the most public manner. All persons can inform themselves of their powers and the manner in which they are to be exercised; and if they propose to contract with them, are bound so to inform themselves at their peril.

The petition filed in the Court below alleges that the eitv authorities had. wholly disregarded the requirements of their charter and ordinances. That they had attempted to make a contract which, .under the circumstances, they had no power to make—that the very first step contemplated by law had not been taken. Yet it is alleged in the same paper, and insisted upon in the argument, that because they had so disregarded the law—and that too with the full knowledge of the plaintiff below—the city is liable upon the proposed contract. .

Now it may be that a large amount of work, beneficial to the inhabitants of the city has been performed under the alleged arrangement, and that the person who performed it is morally entitled to compensation therefor; but that such compensation can be obtained as for work done upon the'original contract, is wholly inadmissable.

The ordinance already referred to provided that the contractor who should grade a street must depend upon the adjacent property for his pay ; and that his contract should contain a stipulation that the city should in no event be liable for his compensation. The paper sued upon although it does not contain this stipulation, yet does provide that the contractor shall receive his pay according to the ordinances’ of the city-^-which means that for such work his pay must come out. of the adjacent property. If his contract were a valid one* and the proper city officer refused tp issue to him the certificates provided for in the ordinance, he possibly might require him to do so by mandamus. But lie alleges that he cannot in any event make his money out of the adjacent property because tlie very first step necessary to its subjection bad not been taken.

The allegations of the petition, then, considered in tho light of the charter and ordinance, amount to about these: The city made a contract without observing the essential and indispensible pre requisites, and because of these omissions the only property which the law says shall be charged with the cost of the work, cannot bo subjected to its payment—Therefore the contract is valid against the city. This conclusion presents to our minds somewhat the appearance of a non sequiter.

We think, therefore, that the mayor had no power to make such a contract as he undertook to make; and that the Court below erred in the first clause of the charge to the jury.

We are also of opinion that tho Court erred in its construction of tho contents of tho paper. The object of the proposed arrangement was to grade a certain street; i. e., to bring the surface to a certain line. To accomplish this it may have been necessary to remove earth from one point to another within the street. The language used would cover either or all of these operations; and the word grade was intended to include them all. It was to bo “ graded ” for twenty cents per cubic yard. The clay was to be measured but ouco. If there was to be a cut, its contents should be measured; but if any portion of the earth removed therefrom, should bo deposited within the street, it should not he again measured. If any earth, more than the cut would supply should be necessary to bring it to grade, that was to be paid for at twenty cents per cubic yard.

We do not desire to be understood as expressing any opinion upon the right of the plaintiff below to recover against the defendant in another form. All we intend to say, is, that lie can not in our judgment, legally maintain his action upon the paper referred to, as upon a contract.

The rulings of tbe Court below upon divers and sundry interesting questions of evidence were elaborately and ex-haustingly discussed at the bar by counsel for plaintiff in error; and upon one of. the most important—abstractly considered—“ reference is made to every elementary work on contracts and evidence, and tbe cases therein cited but inasmuch as the views hereinbefore indicated dispose of the case so far as this Court can dispose of it, we do not deem it necessary, however delightful and entertaining it might be, to consider those questions mow, or to imitate the apparent industry of counsel in the pursuit of authorities.

The judgment will be reversed.

All the justices concurring.