text:
    Frederick, Admx., v. The City of Columbus.

      Municipal corporation — Liability of for Damages — Not liable to one injured by negligence of its fire departments, when — Municipal corporation law.

    A municipal corporation is not, in the absence of any statutory provision, liable in damages to one injured by the negligent acts of its fire department, or any of its members ; nor is it liable for negligence in omitting to inform the members of its fire department of defects in the apparatus of the department, known to itself; nor for neglecting to instruct its fire department in the proper use and management of such apparatus.
    (Decided June 21, 1898.)
    Error to the Circuit Court of Franklin county.

      J. T Holmes; F. A. Davis and Gyrus Iluling, for plaintiff in error.
    On the part of the plaintiff in error, we contend for a line of demarkation between acts which are governmental in their character, as to which an honest discretion may be exercised, as to which honest differences of opinion may arise and as to which a decision is a matter of policy, the adoption, of which may or may not be to the best interests of the public, but which nevertheless embodies the honest best opinion of those persons adopting or rejecting the policy. And those acts of the municipal corporation, which, when a policy has been adopted in reference to a governmental function, such for instance as the establishing of a fire department, relate to the carrying out of that policy, the purchase and use of property to be used in the carrying out of such policies, and the placing in unskilled hands of a dangerous instrument to. be used in a crowded thoroughfare, where the city through its accredited representatives, knows of the dangerous character of the instrument, and the unskillfulness of its agents.
    In this respect it may be noticed that in later years courts have been veering around upon the question of non-responsibility of municipal corporations in the discharge of governmental duties, to the view we have herein expressed. And generally, the later cases will be found most fully to substantiate the claims of the plaintiff in error in this case. City of Toledo v. Cone, 41 Ohio St., 149; Robinson v. Greenville, 42 Ohio St., 625, refers to an unreported case, evidently on all fours with the one at bar. Newark v. Frye, decided by this court March 22, 1881, and unreported.
    No small degree of care and caution is necessary in applying to the case at bar the decision and dieta of the courts in other eases. Thus in Goddcvrd v. Inhabitants of Harpswell, 84 Me., 499; and in 30 Am. St. Rep., 373 copious notes are appended, and the general trend of the language of the author of the note is against the view here expressed by us, yet when the author comes to cases similar to the one at bar, and where the exercise of discretion on the part of the municipality has ceased, the language is quite different.
    Now, if the governmental powers of the municipality cannot afford a shield for it to destroy private rights of property, much less can it afford a shield under which it may endanger and destroy the lives of its citizens.
    Amongst all the cases cited by counsel for either side, the case at bar stands, in some respects, unique. It does not depend entirely upon the question as to whether the city is liable for negligent acts in providing apparatus for its fire department. Acting under a valid authority the city purchased a dangerous instrument, and placed it in unskilled hands, and allowed it to be erected on the principal thoroughfare of the city, and from this unskilled use of the dangerous instrument, for both of which the city is entirely responsible, death resulted. What a perversion of justice it would be, to hold that in such a case she who has lost everything through this wrongful act of the city can have no redress. On the reasoning of our Supreme Court in the cases cited, redress should not be denied her. Jones on Negligence of Municipal Corporations, sections 31, 34, 35, 139, 145, 148, 150, 160, 176, 758, 985, 986; Lafayette v. Allen, 81 Ind., 166; Newcombs. Boston Protection Department, 29 Am. &Eng. C. C., 641; 103 Ind., 413; Joliet v. Verley, 35 111., 58; Pollock on Torts, 51, 52; Mersey Docks Trustees v. Gibbs, L. R., I. H. L., 93; Olarissey v. Metropolitan Fire Dept. (N.Y.), 7 Abb. Pr., N. S., 352; Coots v. Detroit, 44 N. W., 17; Janey et al. v. City of Brooklyn, 120 N. Y., 164; Beach on Public Corporations, note to section 755; Bailey v. New York, 3 Hill, 541; Thayer v. Boston, 19 Pick., 51; Akron v.- Me Comb, 18 Ohio St., 229; Rhoades v. Cleveland, 10 Ohio, 159; MaxamüiconY. New York, 62 N.Y., 160; Smith v. Rochester, 76 N. Y., 506; Warden v. Bedford, 131 Mass., 23; Perkins v. Lcmrence, 136 Mass., 305; Waldron v. LLaveral, 10 N. E., 481; Mackey v. Vicksburg, 64 Miss., 777; CccrdingtonY. St. Louis, 89 Mo., 208; RotolandY. Kata., 49 Mich., 553; Hannon v. St. Louis County, 62 Mo., 313.
    Then, too, it should be noticed that in Columbus it is made the duty of the city to maintain and pay a fire department in the same sense it is made its duty to repair streets. Section 1692, Revised Statutes, provides for both. It has the power and the council by ordinance may provide for the enforcement of the same. Par. 18, to establish, etc., streets. * * * Par. 30, to organize, etc., afire department, erect buildings for same, purchase engines, etc.
    Many of the cases in the books hold the corporation not liable for negligence of its firemen, because they were not in the employ of the corporation — that is, were volunteer firemen of the old regime.
    Under our statutes the city firemen are as much employees of the city as any officer of the city. They are all, from the chief down, appointed, employed and dismissed by the city, paid by the city, and every movement controlled directly by an officer elected by the people, the mayor. Indeed it is no public duty that the firemen discharge as compared with the police power of the state. That is a power exercised to prevent and punish infractions of the state laws, of the public peace, and as much for the benefit of the wayfarer within our gates as for the benefit of our own citizens. The fire department is instituted for the purpose of protecting our own citizens against loss of property by fire. Mr. J. T. Holmes, in his reply brief, cites Hines sr. Loclvport, 50 N. Y., 236; TTrqibhartv. Ogdensburgh, 97 N. Y., 238; Seifert v. Brooklyn, 101 N. Y., 136; Thomas on Negligence, 935; Morrill on City Negligence, chapters 8 and 9; Moon v. Middletoion, 14 C. C., 498; Bentham’s Works, volume IV, page 315, Bowring’s Ed.; 1 E. R. C., 666, 667; Chicago v. Seben, 165 111., 371; S. C., 56 Am. St. Reps., 245 and notes•, France y. Ihe State, 57 Ohio St., 1.

      Sehoyn H. Owen, Director of Law; H. C. Irvine and Cha/rles J. Pretzman, for defendant in error.

      That a municipal corporation is not liable for the negligence or wrongful acts of its officers or agents, by which an injury is done, where the negligent or wrongful act was committed while the officer or agent was engaged in a duty pertinent to the exercise of the governmental functions of the corporation.
    The protection of the people of a city from destruction of their property by fire is a sovereign duty and function. The city is but asserting and exercising this sovereign power and function when she provides and uses the necessary appliances for the extinguishment of fire.
    Counsel for the plaintiff cite and quote, God dwrdv. Inhabitants of Harpswell (Maine), reported in 30 Am. St., something which they maintain favors their contention. We invite the attention of the court to this note. So much as counsel quote relates to the adoption of a plan of some public work, and does not advance the discussion of the question at bar. Mead v. Hew Haven, 40 Conn., 72; 16 Am. Rep., 14; Mendel v. Wheeling, 28 W. Va., 233; Wright v. Augusta, 78 Ga., 241; Wheeler v. Cincinnati, 19 Ohio St., 19; Black v. City of Columbia, 19 S. C., 412; Robinson v. Evansville, 87 Ind., 334; Nickerson v. Bridgeport Co., 46 Conn., 24; Brinkmeyer v. Evansville, 29 Ind., 187; Tainter v. Worcester, 123 Mass., 311; Heller v. Hedalia, 53 Mo., 159; Grant v. Erie, 69 Pa. St., 420; Foster v. Water Co., 3 Lea, 42.
    Nor by showing any negligent act on the part of an officer of the fire department resulting in loss, either by contributing to the destruction of property by fire, or the damage of the plaintiff in other respects. Hayes v. Oshkosh, 33 Wis., 314; Wilcox v. Chicago, 107111., 334; Wilds v. Pa>tt&rson,
      47 N. J. L., 406; Burrill v. Augusta, 78 Me., 118; Grabe v. St. Paxil, 34 Minn., 402.
    Therefore he cannot recover on the ground that through the negligence of a person acting in the department, a collision occurred between a vehicle controlled by such person and the vehicle in which plaintiff was riding, or because plaintiff was negligently run over and thereby suffered personal injuries. Alexander v. Vicksburg, 68 Miss., 564; Hufford v. Hew Bedford, 16 Gray, 297; Jexmtt v. Hew Haven, 38 Conn., 368; Wilcox v. Chicago, 107 Tib, 334; Fisher v. Boston, 104 Mass., 87.
    Or by slipping and falling upon ice, resulting from water being permitted to escape from a hydrant. Welsh v. Rutland, 56 Vt., 228.
    Or by negligently maintaining a door in an engine house, so that it opened upon and struck pedestrian. Kies v. Erie, 135 Pa. St., 144.
    So municipal liability cannot be established by proof that the fire department, or some member thereof, needlessly or negligently caused the destruction of plaintiff’s property, whether such destruction resulted from the negligent management of some appliance or from a mistaken judgment in ordering the destruction of property to arrest an existing conflagration. Dunbar v. San Francisco, 1 Cab, 355; Field v. Des Moines, 39 Iowa, 575; Taylor v. Plymouth, 8 Met., 462; Hayes v. Oshkosh, 33 Wis., 314; White v. Charleston, 2 Hill (S. C.), 571; McDonald v. Red Wing, 13 Minn., 38, sections 2470, 1692.
    The power thus conferred is legislative and governmental and not merely ministerial, and hence a municipal corporation is not liable for damages resulting from failure to provide agencies for extinguishing fires, or negligence of officers of the fire department. Wheeler v. Cincinnati, 19 Ohio St., 19; Western College v. Cleveland, 12 Ohio St., 375; City of Toledo v. Cone, 41 Ohio St., 160; Mitchell v. The City of Rockland, 52 Me., 123; Eastman v. Meredith, 36 N. H., 284; City of Galveston v. Posnainsky, 62 Tex., 119; iTiiZ v. Acstow, 122 Mass., 344; French v. Boston, 129 Mass., 592; Olrnery. Wooster, 102 Mass., 499; Prey v. The Mayor, etc., 23 N. J., 394; Curran v. Boston, 151 Mass., 505; Bigelow v. Inhabitants of Randolph, 14 Gray, 54; Hyde, Admr., v. Jamaica, 27 Vt., 443; Richmond v. Long's Admr., 17 Gratton, 375.
    The prevention of destruction by fire by a municipal corporation is a wholly governmental duty, concerning which said corporations have no liability. Jones on Mun. Corp., sections 27 and 31; Dillon on Mun. Corp., sections 974 and 976; Cooley on Torts, 2d Ed., pages 739-740; Sherman & Redfield on Negligence, section 264; Wilde v. Patterson, 47 N. J. L., 406; Kimball v. Boston, 1 Allen, 417; New Orleans v. Crescent Fwe Ins. Co., 25 La. Ann., 390; Smithy. Rochester, 76 N. Y., 506; Ham v. City N. Y., 70 N. Y., 459; Woodbridge v. Mayor, etc., 49 Ham. Pr., 67; Fisher y. Boston, 104 Mass., 87; McKenna v. St. Louis, 6 Mo. App., 320; Edgerly v. Concord, 59 N. H., 79; 15 Am. & Eng. Ency. of Law, page 1145; Thompson v. Mayor, etc., N. Y, 52 N. Y. Superior Court, 426; Welsh v. The Village of Rutland, 56 Vt., 228; Hayes v. Oshkosh, 33 Wis., 314; Howard v. San Francisco, 51 Cal., 52; Wheeler v. Cincinnati, 19 Ohio St., 19; Thomas v. City of Findlay, 6 C. C., 241; s. c. 3 Cire. Dec., 435; Kinkead:s Code Pleading, section 859.
    Municipal corporations are of a dual character. Jones on Negligence by Mun. Corp., section 24; Lloyd v. The Mayor of Neio York, 55 Am. Dec., 247;
      Hart v. City of Bridgeport, 13 Blatch. (U. S.), 289; Benton v. Trustees of Boston City Hospital, 140 Mass., 13; Bryant v. City of St. Paul, 33 Minn., 289; Deim v. Cincinnati, 25 Ohio St., 305; Finch v. Board of Education, 30 Ohio St., 37; Bobinsonv. Greenville, 42 Ohio St., 625; O’Mearav. Mayor, cic., <?/ _ZWic Tcr/t, 1 Daly 425; Lloyd v. 77¿<? Mayor of New York, 1 Selcl., 374; Marmet v. 77u? Aiaie, 45 Ohio St., 68.
   Minshall, J.

The city of Columbus having purchased a certain apparatus for the extinguishment of fires, called a ‘ ‘ fire tower, ’ ’ its fire department was engaged, on June 24, 1894, in a practice drill on one of its principal streets, when by the negligent management of the members of the department it fell and caused the death of the plaintiff’s husband. He was at the time sitting in his buggy near by and was without fault on his part in any way contributing bo the result. Whereupon his wife, having been appointed his administratrix, brought suit against the city to recover damages for thewrongfúl causing of his death. She charged negligence against the members of the department in managing the tower; also, that the tower was defective to the knowledge of the city, and that it was negligent in not communicating this fact to the members of its fire department ;and that the latter were inexperienced in the use of the tower, and that the city was negligent in not- having' properly instructed them in its management and use. The city demurred to the petition, the demurrer was sustained and the petition dismissed. On error, the judgment was affirmed by the circuit court.

The record presents the simple question whether a municipal corporation is liable in damages to one injured by the negligent acts of the members of its fire department engaged in the use of its apparatus whether in the extinguishment of fires or otherwise. The question has generally, if not universally, been answered in the negative.

The ground on which the non-liability of municipal corporations is placed in such cases, is that the power conferred on them to establish a department for the protection of the property of its citizens from fire, is of a public or governmental nature, and liability for negligence in its performance does not attach to the municipality unless imposed by statute. The non-liability of the city in such cases rests upon the same reasons as does that of the sovereign exercising like powers ; and are distinguished from those cases in which powers are conferred on cities for the improvement of their own territory and the property of their citizens. “It is obvious,’’says Gholson, J.,in Western College v. Cleveland, 12 Ohio St., 375, 377, “that there is a distinction between those powers delegated to municipal corporations to preserve the peace and protect person and property, whether to be exercised by legislation or the appointment of proper officers, and those powers and privileges which are to be exercised for the improvement of the territory comprised within the limits of the corporation, and its adaptation to the purposes of residence and business. As to the first, the municipal corporation represents the state — discharging’ the duties incumbent on the state ; as to the second, the municipal corporation represents the pecuniary and proprietary interests of individuals. As to the first, responsibility for acts done, or omitted, is governed by the same rule of responsibility which applies to like delegation of power; as to the second, the rules which govern the responsibility of individuals are properly applicable. ” In this case it was sought to make the city of Cleveland liable for Raving neglected its duty in not preventing the destruction of the property of the plaintiff by a riotous assemblage of persons. But in a subsequent case of Wheeler v. Cincinnati, 19 Ohio St., 19, the suit was for the recovery of damages against the city for having neglected to make proper provision for the extinguishment of fires and whereby the plaintiff’s property was destroyed. The court, however, held that the duty of the city in this regard fell within the category of the public duties of the city, and that there was no liability. Speaking of the powers conferred on municipal corporations for the extinguishment of fires, the court said: ‘ ‘The powers thus conferred are in their nature legislative and governmental; the extent and manner of their exercise, within the sphere prescribed by statute, are necessarily to be determined by the judgment and discretion of the proper municipal authorities, and for any defect in the execution of such powers, the corporation cannot be held liable to individuals. Nor is it liable for a neglect of duty on the part of fire companies, or their officers charged with the duty of extinguishing fires. The power of the city over the subject is that of a delegated quasi sovereignty, which excludes responsibility to individuals for the neglect or nonfeasance of an officer or agent charged with the performance of the duty.”

That the case just noticed is not in all respects like the one before us may be admitted. In it the city was charged with neglect in not making proper provisions for the extinguishment of fires, here it is charged with neglect in the management of an apparatus for the extinguishment of fires. But the cases uniformly hold that the principle on which municipal corporations are absolved from liability for negligence in the management of its fire department applies in the one ease as well as in the other. In Hayes v. The City of Oshkosh, 33 Wis., 314, the action was for property destroyed by a fire caused by negligence in working a steam fire engine. Dixon, O. J., in disposing of the case, said: “ The question presented in this case is settled by authority as fully and conclusively as any of a judicial nature can ever be said to have been.” Then after citing’ certain cases from Massachusetts, he proceeds: “The ground of exemption from liability, as stated in the authorities last named, are, that the corporation is engaged in the performance of a public service, in which it has no particular interest, and from which it derives no special benefit or advantage in its corporate capacity, but which it is bound to see performed in pursuance of a duty imposed by law for the general welfare of the inhabitants, or of the community; that the members of the fire department, although appointed by the corporation, are not, when acting in the discharge of their duties, servants or agents in the employment of the city, for whose conduct the city can be made liable; but they act rather as public officers of the city charged with a public service, for whose negligence or misconduct in the discharge of official duty no action will lie against the city; and hence the maxim respondeat superior has no application.”

The decision in this case is fully supported by the authorities, and the decisions in the other states of the union. There is, in fact, a remarkable unanimity on the subject. Dill. Mun. Cor., sections 976, 974; Jones Mun. Cor., section 31; Sher. & Red. Neg., section 264; Goddard v. Harftwell, 30 Am. Rep., note, page 388; Hill v. City of Boston, 122 Mass., 344, a leading case. And numerous other cases cited in brief of counsel, from the principal states of the union. In Tiedeman on Municipal Corporations, section 333, it is stated that “Municipal Corporations are not liable for the negligence of their firemen — although they may be appointed and removed by the city, and the performance of the duties are wholly subject to its control — where a person is run over by a hosecarriag'e on its way to a fire; for injuries caused by the bursting of a hose; for damage by fire caused by the negligence of the city’s firemen; for neglect in cutting off water by which the fire might have been sooner extinguished; by the bursting of the mains; because a horse is frightened by steam from an engine left in the street; or for any similar lack of care or skill. ’ ’ The cases in which it has been so held in these several instances, are cited in a note to the section. A case very much in point here is that of Thompson v. Mayor, etc., of New York, 52 Sup. Ct., 427, as there the injury for which the suit was brought, occurred while the employees of the fire department were engaged in testing a certain apparatus, i. e., a fire tower, prior to its purchase by the city; and on the g’round above stated, the city was held not liable. See also Edgerly v. Concord, 59 N. H., 78.

It is not always a simple matter to determine to which class of the duties of a municipal corporation a given case belongs. Okey, J., in Robinson v. Greenville, 42 Ohio St., 629. But as observed in Lloyd v. Mayor, etc., of New York, 5 N. Y., 374. “When the line is ascertained, it is not difficult to determine the rights of the parties, for the rules of law are clear and explicit which establish the rights, immunities and liabilities of the city when in the exercise of each class of powers. All that can be done probably with safety is, to determine in each case as it arises, under which class it falls.” This, however, has been fully determined by the decisions as to cases arising out of the neglect of the fire department of a city or any of its members. The duties violated are, in such cases, regarded as governmental in character, and no liability attaches to the city to compensate persons injured thereby.

The charge that the tower was defective to the knowledge of the city, and that it was negligent in not communicating this fact to the members of its fire department; and that the latter were inexperienced in the use of the tower, and that the city was negligent in not having properly instructed them in its management, so clearly fall within omissions of a governmental character as to need no further notice.

But it is claimed that the question of the city’s liability in this case is settled in this state by the case of Newark v. Frey. This is an unreported case, referred to by Okey, J., in delivering the opinion in Robinson v. Greenville 42 Ohio St., 625, 629. It is not there referred to as an authority supporting the decision in that case, for there the city was held not liable to a person injured by the discharge of a cannon in its streets by an assemblage of disorderly persons, on the ground that the neglect of a city to prevent such assemblages is simply the neglect of a governmental duty. Newark v. Frey was referred to as a ease falling within the rule of municipal liability for the acts of its agents. The act complained of was, as in this case, the testing of an apparatus for the extinguishment of fires, at which members of the city council were present. There was an explosion from some very inflammable materials used to make a fire, which caused the injury complained of, and the city was held liable. What consideration was given the case we do not know. It is not supported by any of the authorities referred to; and is so plainly contrary to the settled law upon the subject, as shown by the authorities that we do not feel bound by it.

Judgment affirmed.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    Wonsetler et al. v. Andrews et al.

      Contract — Interpretation of mining contract — Agreement granting right to explore coal land and to mine — Money paid as annual rental prior to mining operations — Will not be credited on amount to be paid for coal removed.

    In an action to recover the sum agreed to be paid for the right to enter upon the plaintiff's land to explore for coal, and to mine and remove the same at an agreed price per ton, money paid by the defendant as annual rent for coal prior to the commencement of mining operations, and intended by the parties as compensation for the postponement of such operations, will not be credited upon the agreed price of the coal when removed, though the language of the instrument upon which the action is founded be appropriate to pass a present title to the coal.
    (Decided June 21, 1898.)
    Error to the Circuit Court of Mahoning county.
    Wonsetler and others brought an action against Andrews and others in the court of common pleas to recover upon numerous causes of action, founded on the following instrument, the plaintiffs being lessors and the defendants the successors of the lessee:
    “That the said party of the first part hath this day leased and let, and do hereby convey unto said second party, for the consideration hereinafter mentioned, all their right and title to any coal which may be found upon or within the following described lands, to-wit: * * *
    Together with the right and privilege to enter thereon and drill and explore for coal, and if found, to dig, mine and remove the same; and in case it shall be absolutely necessary to use any portion of the surface of said land to mine said coal, said Andrews may do so by paying at the rate of one hundred ($100) dollars per acre for the same, which shall in no case exceed two acres, except by consent of the party of the first part; and there shall in no ease be miners’ houses erected thereon. Said Andrews may use any entry or improvements which he may make, over or through which to transport coal mined from other lands, and in the prosecution of search for coal, as well as the mining of the same, as little damage shall be done to the soil or surface of said land as the nature of said business will permit.
    For and in consideration of the foregoing covenants and agreements by and on the part of the said first party, said second party hereby agrees and binds himself, his heirs and assigns, to pay or cause to be paid unto said first party, their heirs and assigns the sum of fifteen (15) cents per ton (of twenty-two hundred and forty pounds) for each and every ton of coal mined from said land, said coal to be weighed upon correct scales at the bank, and a correct account of the same kept in books, and said scales and books shall at all reasonable hours be open to the inspection of said first party, their heirs or assigns. And said Andrews further agrees, that he will proceed without delay to make search for said coal, and if found in sufficient quantities to justify mining, that he will prepare to mine the same at the earliest time practicable, and continue to prosecute the mining thereof with all due diligence. Said Andrews also agrees that after he shall have reached said coal by entry or otherwise so as to be able to mine the same, that he will proceed to mine coal to such an extent that the rent due said first party at the aforesaid price per ton, shall amount to at least one thousand dollars per annum, or pay for the same as though mined, otherwise this article to become null and void. And said Andrews further agrees that if, after one year from the date hereof he shall not have been able to reach said coal, (having used all due diligence and exertion) he will, if this article is retained, pay to the said first party as rent for coal at the rate of three hundred dollars per annum until said coal is reached so as to be mined, when, and from that time forward he shall be bound as above stated.
    The instrument was executed December 9, 1861, but actual mining of the coal under its provisions began in 1887 and was concluded in 1892. From the execution of the lease until mining operations were begun, the defendants paid the plaintiff the sum of $300 per annum, but after mining operations commenced deducted from the coal mined, computed at fifteen cents per ton, the sum of the annual payments of $300 per annum, so made previous to the mining' operations, claiming that such previous payments were, according to the terms of the lease, payments in advance upon the coal which might be mined, at the rate of fifteen cents per ton.
    Whether this is the correct construction of the lease is the only subject of contention between the parties. These facts having been disclosed upon the trial, the defendants requested the court to instruct the jury' that the sum of the annual payments made before mining operations were begun were to be regarded as payments in advance upon the coal mined during such operation, at fifteen cents per ton. The court refused to give the instructions so requested, and in lieu thereof, charged as follows:
    “The defendants claim and insist that this $300 payment to be made annually was to be applied upon coal thereafter mined under the lease.
    “The plaintiffs admit the receipt of the payments of $300 from time to time as alleged by the defendants, but say that by the terms of this lease these payments were not to be so applied, and that there is due them from the defendants the amount claimed in their petition and the supplement thereto.
    “Various pleadings have been filed by the parties in this proceeding involving numerous other questions to which it is not necessary to call your attention at this time, but the statement here made embraces substantially the controversy between the parties, and from this statement you will observe that the real controversy in this case arises in reference to the payment and application of the $300 yearly as provided for in the lease. * *
    “It is incumbent upon the court to place a construction upon this lease, and upon that particular part of the same out of which this controversy arises, and upon this question I say to you as matter of law that the true import and meaning of the language used by the parties in the lease is, and that the intention of the parties therein expressed was, that the three hundred dollars to be paid yearly, provided for in the lease, and by the terms thereof, to which your attention has been called, when the same was paid, prior to mining of coal would not be applied to the payment of the 15 cents per ton of 2240 pounds of coal when the same was mined from the land.”
    To the refusal to instruct as requested, and to the instruction given, counsel for the defendants excepted. There being a. verdict and judgment for the plaintiffs, a petition in error was filed in the circuit court where the judgment of the common pleas was reversed for error in the instructions.

      B. B. Murray and L. W. King, for plaintiffs in error.

      Thomas W. Sanderson, for defendants in error.
   Shauck, J.

The different views taken of the meaning of this instrument by counsel and by the courts below find ample explanation in the vagueness of its stipulations. That its terms are effective to convey a present interest in the coal beneath the soil, as maintained by counsel for the defendants, may be admitted; but that proposition does not seem to aid in the present inquiry, since the parties here are not contending concerning the ownership of the soil or of the coal beneath it. When the controversy arose the defendants had become the unquestionable owners of the coal. The controversy concerns the amount they were to pay for the rights and privileges conferred upon them by the instrument, whether the title to the coal remained in the plaintiffs until its actual separation from the soil, or passed upon the execution of the instrument.

An analysis of the instrument shows that the parties first designated the rights of the defendants to be to enter upon the land described, to drill and explore for coal, and if found, to mine and remove all that might be found upon or within it. The stipulation immediately following shows that the value of the coal in place was agreed to be fifteen cents per ton, and this included compensation for the right to enter upon the land and explore for coal and to occupy such portion of the surface, not exceeding two acres, as might be absolutely necessary for mining operations. In connection with this, and contemplating the diligence with which coal should be mined “after it should be reached” the defendants bound themselves to mine to such an extent that the plaintiff should receive, at the designated “price per ton,” at least one thousand dollars per annum. The remaining stipulation of a material character does not concern the price of the coal. In making it the parties seem to have contemplated only the delay which might intervene prior to the commencement of the actual mining of coal, and with respect to that delay the defendants became bound to pay the sum of $300 per annum “as rent for coal.”

Certainly we are concerned only with the intention of the parties, and conclusive effect should not be given to the different terms “price” and “rent” if they appeared to have been used as synonj'rns. That, however, does not appear. That they were used discriminatingly to indicate the different purposes for which the contemplated payments should be made, is to be inferred from the concluding portion of the stipulation lastly quoted: “When and from that time (that is, from the time the coal should be reached so as to be mined) he shall be bound as above stated.” This stipulation, and the different terms used to designate the purposes contemplated in the different payments to be made, indicate that the price of $300 per annum was to be paid so long as the defendants might retain the contract for the right to postpone mining operations; and it seems to be entirely independent of the price to be paid for the coal after mining operations should be actually undertaken.

It is said by counsel for the defendants that nearly all the instruments executed for the purposes which these parties had in view contain the express stipulation that all sums paid in advance of -mining operations shall be credited upon the agreed price of the coal when mined. The omission of such stipulation in the instrument under consideration would indicate that a different result was intended by the parties in this case. A stipulation of so material a character should not be supplied by construction. The interpretation of the contract which the trial judge gave to the jury is in accord with this view.

Judgment of the circuit cou/rt reversed, that of the common pleas affi/rmed.


author: Bradbury, J.

text:
    City of Lancaster v. Miller.

      Municipal corporation contract — To construct sewer — Imposes no obligation on city unless contract conforms to law — Sections 2303 and 2702, Revised Statutes — Omission of requirements a good defense by municipality — Effect op overruling motion to make petition definite.

    1. A contract entered into by a municipal corporation by which, in its own behalf, it undertakes to pay for the construction of a sewer in one of its streets, the cost of which exceeds five hundred dollars, imposes no valid obligation on thecorporation, unless it has advertised for bids according to the requirements of section 2303, Revised Statutes.
    2. Nor will such contract impose on the corporation a valid obligation even if bids were advertised for pursuant to said section 2303, unless the auditor, or clerk, of the corporation, as the case may be, 11 shall first certify that the money required for” that purpose “is in the treasury to the credit of the fund from which it is to be drawn, ” etc., as required by section 2702, Revised Statutes.
    3. Where either of such requirements has been omitted the municipality will not by the acts of its officers be estopped to set up such omission as a defense to an action brought against it on such contract.
    4. Where in an action founded on such contract the petition does not set forth its terms, and a motion is interposed by the defendant to make the petition more definite and certain by stating those terms, an order overruling such motion constitutes error affecting a substantial right of the defendant.
    (Decided June 21, 1898.)
    Error to the Circuit Court of Fairfield county.
    This action was brought in the court of common pleas of Fairfield county by the defendant in error against the city of Lancaster, plaintiff in error, to recover a balance claimed to be due him from the city on account of the construction of part of a certain sewer, and certain catch-basins to be used in connection therewith, for the use of the city. The plaintiff had judgment in the court of common pleas which was affirmed by the circuit court on error. Thereupon the defendant below, plaintiff in error, brought the cause to this court to obtain a reversal of the judgment of the circuit court.
    The facts necessary to an understanding of the questions decided will be found in the opinion of the court.

      Frank M. Acton and A. I. Vorys, for plaintiff in error.
    As general propositions of law applicable to the case, and that should have been given to the jury in the charge, we maintain:
    First. The positive, mandatory, statutory requirements, not being observed in making the contracts, no subsequent action of the council, however formal, can ratify the contracts and make them binding on the city.
    Second. If such informal and unauthorized contract can be ratified by the council it must be done by the same formal mode of record, as is required in the first instance; that is by ordinance and observance of the other requisite formalities.
    Third. No acceptance or use of the improvement will ratify the unauthorized contract.
    Fourth. If a sewer is constructed without authority of the council, the fact that the natural drainage of the street causes surface water therefrom to flow into the sewer, and the city cleans out the sediment from the sewer, to prevent overflow, etc., does not bind the city to pay a quantum meruit for the sewer.
    Fifth. It must be shown by the party claiming the benefit of the contract, that the acts of acceptance and ratification were by the council with full knowledge of the contract.

      There is no evidence in this case that the council had any knowledge of the contract, or of the improvement, or that the sewer was cleaned out.
    Sixth. The statutory requirements of a previous certificate that the money is in the treasury, and published advertisement for sealed bids having been omitted, no subsequent action of the council can cure these omissions.
    Eighth. The court say, that if the contract was made by the committee and Miller, and afterwards modified by the engineer and Miller, and “the council of defendant, with full knowledge of the character and terms of the modified agreement, ratified the same. Then the agreement became binding as contracts on the city, ’ ’ etc.
    Ninth. Again, the court say: “It (the council) might ratify and make binding on the city, those agreements, by payment either of the whole or part of the price of such catch basins to plaintiff on those agreements.”
    Tenth. Or it might ratify by accepting the work.
    Eleventh. “If the city, through its official authorities took charge of those basins and exercised control over them, actively used them, cleaned them out * * * or repaired them, that
    would be evidence of acceptance by the city of those basins.”
    It is not said here that the council must take charge, etc., but that if the sewer is made under an unauthorized contract and the “official authorities”--the street commissioner for instance cleans it out that would amount to acceptance, and the city is bound to pay the contract price.
    Twelfth. Again the charge proceeds on the theory that there is evidence of knowledge by the council of the contract between the committee and engineer, and Miller.
    Thirteenth. The next instruction excepted to specially, seems to us unfounded in any view. It is in substance and effect that if a payment was made to Miller, or if the water ran in the sewer and any servant of the city cleaned the same out, “the plaintiff will be entitled to recover the contract price, * * * even though the contract price may be in some measure in excess of the actual cost, as you may find it from the evidence. ”
    Fourteenth. The next instruction relates to the $106 order. The order was given to Miller under a resolution passed in his presence, declaring it payment in full. Miller received it, endorsed it and received the money on it, and after-wards, at his instance, the words “in full” were eliminated from the council’s records.
    We claimed that this was acceptance by him of the $106, in full settlement, when he knew it was paid under that resolution, and that the subsequent action of council could not effect this settlement.
    ■ Fifteenth. That the contracts averred in the petition were made, was denied in the answer and there is strong evidence in the record showing that the contracts were not made as claimed by Miller. To meet this phase of the ease, the court instructs the jury in substance, that even if the contract were not made, Miller would be entitled to recover the value of the catch basins if the officers of the city cleaned them out, or if the council made any payments to Miller, and that the city might ratify a contract that was never in fact made, even by the committee or engineer.

      Sixteenth. We maintain, for the reasons heretofore urged, here also, that the verdict is not supported by any evidence, and for that reason the judgment of the lower courts should be reversed.
    The decisions upon this subject are somewhat numerous and not altogether harmonious. No authorities, however, in states having statutes controlling municipalities, analogous to ours, support the position taken by the court in this case.
    In Beach on Municipal Corporations, the general rule respecting ratification of unauthorized contracts, is extended as far as the most liberal authorities will allow it. Volume I, sections 692, 696, 697, 1143; Dillon’s Municipal Corporation, Volume I, section 463, 3d Edition (old section 385); Parr & Village of Greenbush, 72 N. Y., 463.
    Ratification and acceptance and use of the improvement were urged as binding the village. It was held that the resolution was illegal. Parr could not recover for the sand and gravel, because the furnishing of the same had not been let to bids, as directed by the charter of 1871, and that no recovery could be had on a quantum meruit. Earl I, page 472; Brody v. Oity of New York, 20 N. Y., 312; McDonald v. the Mayor, 68 N. Y., 23; Guita Percha Rubber Mfg. Go. v. Village of Ogalaila, 59 N. W. Rep., 513 (Nebraska), Cent. Law Journal, Volume 39, page 162; French v. Burlington, 42 Iowa, 614; Am. and Eng. Ency. of Law, Volume 15, page 1104. But ordinarily mere use does not amount to ratification. Turney v. Town of Bridgeport, 55 Conn., 412; Dellanty v. Town of Vaughn, 45 N. W. (Wis.), 1128; Taff-v. Montague, 14 Mass., 282; Looker v. Brookline, 13 Pick., 343; Sceery v. Springfield, 112 Mass., 512:
      Town of Durango v. Pennington, 8 Colo., 257; 7 Am. and Eng., Corp. Case, 588.

      Thomas H. Dolson and Brasee <& Brasee, for defendant in error.
    We contend that even if the improvements did involve an expenditure of more than $500, and that the contract was let without advertisement, still such a contract could not be ultra vires but at most informal merely. Beach on Public Corporations, sections 225 and 693; Commentaries on the Laws of Municipal Corporations by Dillon, section 936; Beach on Public Corporations, 689; Beers v. Dallas City (1888), 16 Oregon; section, 693, Beach on Public Corporations; Ward v. The Town of Forest Rose (Oregon, 1891), 25 Pacific Rep., 1020; Gas Company v. San Francisco, 9 California, 469; Fister v. La Rue, 15 Barbour, 323; Beach, section 366; Board of County Commissioners v. Ffewland, (Ind., 1892), 31 N. E. Rep., 465; Sims v. Himes, 131 Ind., 534; 23 N. E. Rep., 515.
    And if there was no express contract then there was an implied contract, and implied contracts for property and labor are extended to municipal corporations the same as to individuals. Beach, sections 225, 226, 227, 228, 229, 794, 300 and 610; Argenti v. San Francisco, 16 Cal., 282; Pimentol v. San Francisco, 21 Cal., 351; Dillon’s Commentaries, sections 459, 192 and 938.
    The recovery may be had upon a quantum meruit. Beach, section 705.
    Where services have been completely performed at the request of a municipal corporation, made through its officers, and have been accepted and received by it, the corporation is then under legal and moral obligation to pay for such services whatever they may be reasonably worth notwithstanding irregularities intervening in the original employment. Mayor of N. T. v. Sonneborn, 113 N. Y., 425.
    Suppose the committee was unauthorized or not properly authorized to make the contract, still we contend that by the appropriation, acceptance and use of the sewer basins and of the partial payment made for them, as shown by the evidence, on the part of the city, the contract of its committee has been ratified; and that unauthorized contracts may be ratified there can be no doubt. Beach on Public Corporations, section 249; School Distinct v. Sullivan (Kansas, 1892) 29 Pacific Reporter, 1141; Dillon’s Commentaries on the Law of Corporations, sections 139, 463 and 464; Beach, section 1343^
    The city is estopped to set up as a defense its own irregularities in the exercise of' a power clearly granted to it. Dillon’s Commentaries, section 936. Cincinnati v. Cameron, 33 Ohio St., 336; Fister v. Trustees of School District, 15 Barb., 323.
    Several decisions of the courts of other states have been quoted and amplified and are relied upon by counsel for plaintiff in error in support of the doctrine contended for by them; in answer to which we have only to quote from the language of Judge Field in the case of Argenti v. San Francisco, 16 Cal., 284.
    It was not an error in the trial court to overrule defendant’s motion to require the plaintiff to separately state and number in his petition his several causes of action. There were not several causes of action stated in the petition. The suit was not upon an original contract and also upon an additional or supplemental one, but upon an account for a balance due for labor done and materials furnished under an original contract made between the parties which was afterwards amended and modified by them. It is upon the account for a balance due under this amended and modified contract that the petition is predicated. Brown v. Ghamplin, 66 N. Y., 214; Bates’ Code of Pleading, Volume I, page 379.
    However we might concede to the plaintiff in error that the trial court should have sustained this motion, yet there was no prejudicial error in its refusal so to do. Bear v. Knowles, 36 Ohio St., 43.
    Nor was there any error in the refusal of the trial court to sustain defendant’s motion to require the plaintiff to make his petition more definite and certain, and to set forth his contract more specifically. The averments in the petition in this respect were sufficiently explicit. Dorrington v. Meyer, 8 Neb., 211; Estes v. Farnham, 11 Minn., 423, 434; Detroit, etc. B. B. v. Forbes, 30 Mich., 165; Bollins v. St. Paxil Lumber Go., 21 Minn., 5; Williams v. Healey, 3 Den., 363; Henry v. Gleland 14 Johns., 400.
    And in doing this the legal effect of the contract may be stated or its substance given or the covenant for whose breach the action is brought may be set forth in ypsissimis verbis. Bates’ Code Pleading, Volume I, page 97.
    Also the demurrer to the petition was properly overruled. The petition states facts sufficient to constitute a cause of action on the account for a balance due under the modified contract. But even if this be not so, while no ratification is pleaded in so many words, yet the allegations show an appropriation, acceptance and use by the city of the work done, and partial payment made therefor, which under the doctrine of law already stated, would at least entitle the plaintiff to be paid for his work, labor and material a quantum meruit, and enable his petition to successfully resist a ■ general demurrer.
   Bradbury, J.

This action was begun by the filing of the following petition:

“In the month of---, A. D. 1891, the defendant, which is a municipal corporation, was engaged in improving Broad and Columbus streets in said city of Laneester, with a brick pavement and at the same' time the plaintiff was engaged in performing his contract duly made with the defendant to put a twenty-four inch sewer across said Columbus and Broad streets at their intersection with Mill street in said city and connect them with and build eight sewer pipe catch-basins with McDonald tops at the four corners of said streets at their intersections and one such catch-basin at an alley on Columbus street, near to said Mill street, and the performance of which contract required the use of the following materials, and for the same and the necessary labor to dig the trenches, etc., and put said material in place and fill said trenches, he was entitled by the terms of said contract to receive from defendant and be paid the following prices and sums, viz.:
“Two hundred feet 24-inch sewer pipe at $1.25, $250.00; two hundred and forty feet 15-ineh sewer pipe at 65 cents, $156.00; two hundred and twenty feet 12-ineh sewer pipe at 55 cents, $121.00; twenty-three ells of 15-inch 2 pa by G. Matt, at $1.25, $26.25; nine tees of 24 inch sewer pipe at $3.50, $31.50; nine sewer inlets, $108.00; nine catch-basins, $225.00.
“Said plaintiff had all his materials on the ground for the construction of said catch basins and had completed the one at said alley and said work was being done under the direction and superintendence of the city engineer of said city and the committee on drainage of the council of said city, and thereupon said engineer and committee being of opinion that said sewer pipe catch-basins would not answer the purpose intended, directed the plaintiff instead thereof, to construct at said eight corners cistern patch-basins with McDonald tops, and agreed to pay him for such change and the necessary labor and materials to make the same, the sum of $25 apiece or together $200.
“And the plaintiff says that in pursuance of said direction and agreement he completed said contract and made said changes and furnished all the necessary labor and material therefor, which was of the cost and value, of $25 apiece or $200, and the same was so done with the knowledge of said defendant and its officers and agents other than said engineer and said committee and since the construction thereof said defendant has possessed and used and still and now possósses and uses said catch basins, and by reason of the premises there became and was due to the plaintiff on account of said original contract and said modifications and extras thereof as aforesaid, the sum of $1,117.75, but said defendant, although often requested so to do, has hitherto failed and refused to pay plaintiff said sum or any part thereof except $723 and the whole balance thereof, to-wit: $394.75, with interest thereon from the first day of January, A. D. 1892, is still due to him and unpaid for and for which he asks judgment against defendant. Wherefore the said plaintiff prays judgment against said defendant for said sum of three hundred and ninety-four dollars and seventy-five cents, together with interest thereon from the 1st day of January, A. D. 1892.”

The petition does not disclose the terms of this contract, nor the circumstances under which it was made. Had this been done, the character of the contract, whether legal or illegal, would have appeared, and its validity could have been determined by a demurrer to the* petition.

Doubtless an apprehension of the result that might follow such a course was the moving cause that induced the able and experienced counsel for the contractor to refrain from setting forth more specifically the contract and the manner in which it was made. A motion to require the plaintiff below to make his petition more definite and certain, by setting forth the terms of the contract, was made and overruled in the court of common pleas. The city then interposed a demurrer to the petition on the ground that it did not state a cause of action. The demurrer was overruled, and thereupon the city answered, denying the validity of the contract under which the work was alleged to have been done and the material furnished, and also denying that such work or material were of the value alleged.

An inspection of the petition will show that the claim of the contractor exceeded $1,100.00, $200.00 of which accrued from work authorized by a modification of the original contract. The circumstances under which the modification of the original contract was made are set forth with reasonable clearness, but the petition is silent concerning the terms of the original and principal contract itself. The petition simply states that: “The plaintiff was engaged in performing his contract duly made with the defendant to put in twenty-four inch sewers across said Columbus and Broad streets at their intersection with Mill street,” etc. This averment shows simply that at the time the contract was modified, the plaintiff was performing a contract “duly made” with the city, but contains no word as to its terms. If it appeared that the plaintiff had been paid in full for all the work, etc., performed under the principal (original) contract and was seeking only to recover what had accrued under the modification, the averment might have been sufficient, but this was not the case. His right rested on both. The existence and terms of the original contract were as necessary to his recovery as were those of the modification. The right of the city in this respect was to be advised as to the whole claim of the contractor. It was entitled to know just what, according to the plaintiff’s version of the contract, he was to do and what obligations it imposed on the city— that it might admit or take issue upon those terms according to its understanding of their truth or falsity.

Certainly no principle of pleading is more firmly established than that one who founds his cause of action upon a contract must set forth that contract, at least in all cases where a quantum meruit will not lie. The amount involved in the contract in question exceeded $500, and according to the principles hereafter to be announced a special contract was indispensable to a recovery against the city.

The motion should have been sustained.

In view of the principles hereinafter announced doubts will at once arise respecting the sufficiency of the petition and the correctness of the action of the court of common pleas in overruling the demurrer to it. But as the real qustion in the case is whether the contract under which recovery was sought was legal and valid, and as the answer controverts this validity, andas the circumstances upon which its validity depends are found in the bill of exceptions, that question will be determined according to the undisputed facts there disclosed, rather than by a review of the holding on the demurrer which would confine us to such facts or rather absence of facts as may be found in the petition. Those undisputed facts show that the city of Lancaster was engaged in paving two of its streets, Broad and Columbus streets; that these two streets ran parallel to each other, both crossing Mill street; that the latter street at the two points where the two streets above named cross it, would be paved as parts of those streets; that the city of Lancaster was contemplating the construction at an early date of a sewer along Mill street, and to avoid tearing up the paving at its intersection with Broad and Columbus streets, which would become necessary if the city delayed the construction of the sewer in question until after the improvement of those two streets had been completed, the city determined to locate and construct at once the sewer at those intersections. The determination was reached by the drainage committee of the council rather than by any formal action of the council itself, and this is also true of the letting of the contract for the construction of the sewer at these intersections. The city council took no action whatever, either to authorize the drainage committee to enter into the contract, or to ratify the contract after it was made, except what may be implied from its appropriating money to be applied in part payment of the work. No advertisement for bids was made, as provided by section 2303, Revised Statutes, nor does it appear that funds to pay for the work was in the city treasury, or that a certificate to that effect was made by the proper officer, as prescribed by section 2702, Revised Statutes. That the work was done according to the contract and partly paid for is not disputed. Did a contract thus made, and afterwards performed, impose a liability on the city? Doubtless it would do so but for the restrictive provisions of the sections of the statute before alluded to. Counsel for defendant in error cite authorities which strongly tend to establish the general doctrine that municipal bodies, as well as individuals, may be bound by implied contracts, and that where work has been done, or material supplied to municipal corporations for purposes within the scope of their powers, and has been accepted by them, they should be held to the payment of their reasonable value. Conceding the. soundness of this rule as a general principle, to what extent has it been modified by the statutes of Ohio. The statutory provisions that chiefly bear upon this question are found in sections 1693, 2303 and 2702, Revised Statutes. Section 1693, provides: * * * “And no contract, agreement or obligation shall be entered into except by an ordinance or resolution of the council,' nor any appropriation, of money for any purpose be made except by an ordinance; every ordinance appropriating money shall contain an explicit statement of the uses and purposes for which the appropriation is made; the power or authority to make a contract, agreement or obligation to bind the corporation, or to make an appropriation, shall not be delegated; and every contract, agreement or obligation, and every appropriation of money made contrary to the provisions of this section shall be void as against the corporation, but binding on the person or persons making it. ’ ’

Section 2303. When the corporation makes an improvement or repair provided for in this chapter, the cost of which will exceed five hundred dollars, it shall proceed as follows:

‘ ‘First. It shall advertise for bids for the period of two weeks * * * in two newspapers published in the corporation. ” * * *

Section 2702. No contract, agreement, or obligation involving the expenditure of money shall be entered into, nor shall any ordinance, resolution or order for the appropriation or expenditure of money, be passed by the council or by any board or officer of a municipal corporation, unless the auditor of the corporation, and if there is no auditor, the clerk thereof shall first certify that the money required for the contract, agreement or other obligation, orto pay the appropriation or expenditure, is in the treasury to the credit of the fund from which it is to be drawn, and not appropriated for any other purpose, which certificate shall be filed and immediately recorded; and the sum so certified shall not thereafter be considered unappropriated-until the corporation is discharged from the contract, agreement or obligation, or so long as the ordinance, resolution or order is in force; and all contracts, agreements or other obligations, and all ordinances, resolutions and orders entered into or passed, contrary to the provisions of this section shall be void.”

The provisions of one of these sections (2303) applies only to contracts for improvements the cost of which exceeds $500. Did the contract involved in this action contemplate an expenditure exceeding that sum?

The contract related to two different and disconnected sections of the same sewer. One section was to be constructed at the intersection of Mill street and Broad street; the other section at the intersection of Mill and Columbus streets, each to be supplied with catch basins. These two sections, however, were, in the end, to become component parts of a sewer extending along Mill street. When the balance of the sewer should be constructed it would be joined to these two sections and the whole compose a single sewer along that street.

While a municipality in this state should not be allowed to divide an improvement, which is in fact single and entire, into separate parts so as to make the cost of each part less than $500, and contract separately for the construction of each part, thereby evading the provisions of section 2303, Revised Statutes, as to advertising for bids; nevertheless, if in view of the circumstances under which the city was acting at the time this contract was made, it in good faith had elected to regard the construction of each section as a matter distinct and independent of the other, and had proceeded to contract separately for each section, neither would have originally involved an expenditure of $500, and therefore, it might not have fallen within the provisions of section 2303 as to advertising for bids. This was not done, however, but instead, the two sections were treated as one and their construction was provided for by a single contract, which involved an expenditure exceeding $500.

This section, 2303, Revised Statutes, however, does not extend to every contract involving an expenditure exceeding $500, but only to such contracts as relate to an improvement or repair provided for in chapter 4, division 7, of Title XII, Revised Statutes. The circumstances under which the contract in question was made are peculiar. The municipal authorities were acting in advance of any established plan of improvement. How the fund was to be raised to pay the cost of the sewer upon its ultimate construction does not appear. The scheme in this respect had not been developed when the contract was made. The usual course where an improvement is made pursuant to the chapter above named, is to assess the cost of construction, or a material part of it on the property to be benefited, but whether it was to be done in this way or the expense placed upon the entire taxable property of the city, nevertheless the contract related to the construction of a sewer and that is an improvement provided for in that chapter. Therefore, we think the provisions of section 2303 are applicable and that the advertisement for bids which it prescribes, was indispensable to the validity of the contract.

Section 2702, Revised Statutes, is also applicable to this contract. This section prohibits a municipality from entering into any contract * * * involving the expenditure of money unless the auditor or clerk, as the case may be, shall first certify that the money required for the contract is in the treasury.

The provisions of section 1693, Revised Statutes, are equally applicable and emphatic: That section provides that “no contract * * * shall be entered into except by ordinance or resolution of the council * * * . The power or authority to make a contract * * * shall not be delegated and every contract * * * made contrary to the provisions of this section shall be void as against the corporation. ”

■ The evils against which these restrictive statutes are directed are municipal extravagance and the negligence and indifference of municipal officers. They were designed for the protection of municipal taxpayers generally, as well as to guard against excessive special assessments against property to pay for local improvements. The mischief arising from municipal prodigality and the growth of municipal debts that attended thereon, called loudly for an efficient remedy. These restrictive statutes are the answer to that call. They embody that principle of sound public policy which seeks to enforce economy in the administration of public affairs. The judicial tribunals of the state should administer these laws so as to advance the purpose thus sought to be accomplished. Contracts made in violation of these statutes should be held to impose no corporate liability. Persons who deal with municipal bodies for their own profit should be required at their peril to take notice of limitations upon the powers of those bodies which these statutes impose.

The corporation should not be estopped by the acts of its officers to set up these statutes in defense to contracts made in disregard of them. It would be idle to enact those statutes, and afterward permit their practical abrogation by neglect or other misconduct of the officers of the municipality. If such effect should be given to such acts of municipal officers it would defeat the operation of the statutes. The strict enforcement of these provisions may occasionally cause instances of injustice; it is possible that municipal bodies may secure benefits under a contract thus declared void and refuse to maké satisfaction. In the nature of things, however, these instances will be rare. Those who deal with public agencies entrusted with the management of municipal affairs, usually experience liberal treatment. Such agencies are not stimulated to acts of injustice by cupidity. Self-interest, that great motive to overreaching, is absent. If, however, cases of hardship occur, they should be attributed to the folly of him who entered into the invalid contract. The gateways of municipal prodigality should not be left wide open, because an attempt to narrow them may cause an occasional instance of seeming hardship.

A few words may be added as to operation of section 1693, Revised Statutes, which declares a contract void as to the municipality if not “entered into by ordinance or resolution of the council.” Notwithstanding this emphatic declaration, yet, so far as this ease is concerned it may be conceded-that a contract made in violation of this section is capable of subsequent ratification by the council. But whether a contract thus made may be ratified by the council or hot, or if capable of ratification, whether the act of the city council in appropriating money to be applied on the contract involved herein, was a sufficient ratification, is immaterial to á decision of the case and will not be considered further, because however that may be, the contract having been made in violation of sections 2303 and 2702, Revised Statutes, is on that account clearly void and imposed no liability on the city.

Judgment reversed and judgment for plaintiff in error on the undisputed facts.