29 Neb. 149 | Neb. | 1890
The Call Publishing Company, a corporation issuing a daily and weekly newspaper, sued the city of Lincoln to recover the value of printing and publishing certain ordinances, advertisements, and public notices, required by law to be published, from July 16 to October 13, 1889, inclusive, at the legal rate of twenty-five cents per square,
The petition alleges that one of the councilmen of the city, H. M. Bushnell, is a stockholder in the plaintiff’s corporation, and was chairman of the council’s committee on printing during the time of the publication of the ordinances, advertisements, and public notices mentioned, which were so ordered, printed, and published according to the established usage and customs of the defendant.
The defendant demurred on the grounds:
1. That a recovery would be against public policy.
2. That it would be against the provisions of sec. 46, chap. 14, of the Session Laws of 1889, which were sustained by the court, and the petition dismissed at plaintiff’s costs.
The plaintiff’s grounds of error are that the court erred in sustaining the demurrer, and in dismissing the petition at the plaintiff’s costs.
While it may have been, and probably was, the general intention of the legislature in framing and passing the act entitled “An act to incorporate cities of the first class, and regulating their duties, powers, government, and remedies,” approved March 29, 1889, popularly known as the “Lincoln city charter,”to provide that all supplies furnished, and all services rendered to the city, except the services of the officers therein provided for, should be furnished or rendered under express written contract upon competitive bids, or proposals, therefor, yet I am unable to find any section, clause, or provision which expressly, or by implication, makes it the duty of any officer or department of the city to enter into contract for the publication of any of the notices therein required to be made, or for the printing, the maximum price of which is limited by the 93d section of the act. But, on the contrary, a consideration of the several provisions of the act, and especially of said section 93, leads me to the concl usion that the legis
In section 29 of the act, the city engineer is required to “make estimate of the cost of labor and materials which may be done or furnished by contract with the city, and make all surveys, estimates', and calculations necessary to be made for the establishment of grades, building of culverts, sewers, waterworks, bridges, curbings, and gutters, and erection and repair of buildings,” etc., and said section further provides that before the city council shall make any contract for the above character of works, or any other work, or improvement, to cost over two hundred dollars, an estimate of the total cost, together with detailed plaus and specifications, shall be made by the city engineer, etc.; “ and in advertising for bids for any such work,” etc., “ such advertisement shall be at least ten days in some daily newspaper of general circulation published in the city.” Section 36, amongst other things, provides that “No claim arising on contract or tort exceeding the sum of $25 shall be allowed until the same shall have been read in open council and the name of the claimant and the amount and nature of the claim published once in a daily newspaper published and of general circulation in said city.” Section 40 provides for the passage annually of an ordinance to be termed the “annual appropriation bill,” and section 41 provides that before such annual appropriation bill shall' be passed the council shall prepare an estimate of the probable amount of money necessary for all purposes, to be raised in said city during the fiscal year, etc., and shall cause the same to be published for one week in some daily newspaper published and of general circulation in the city. Section 48 provides that all ordinances of a general nature shall, within one month after they are passed, be published in some newspaper published -within the city, or in pamphlet form, etc. There are several other provisions of the act
If the printing and publishing, for which this action was brought, had been done under contract with the city, the case would fall within the reason and authority of, and be governed by, the case of Grand Island Gas Co. v. West, 28 Neb., 852, decided at the present term; but the same not having been done under contract, and there being no provision- of law under which it could have been so done, neither that case nor the cases there cited are deemed to be applicable.
Section 46 of the act under consideration provides that “No officer of any city shall be interested, directly or indirectly, in any contract to which the corporation, or any one for its benefit, is a party; and such interest in any such contract shall avoid the obligation thereof on the part of the corporation; nor shall any officer of the city be interested, directly or indirectly, in any contract to perform any
I know of no rule of public policy that denies to a person performing a necessary labor for another, be that a natural person or a corporation, the right to his pay therefor; on the contrary, this right is too important to be overcome by a mere sentiment and technical theory of corporate independence.
Again, if the publication of these notices and other matters in plaintiff’s newspaper was held illegal, for the purpose of payment therefor it would logically follow that they be held illegal for all purposes, and as mahy important acts of the city depend for their legality upon such publication, it is impossible to foresee the mischief which might result from such holding. I therefore conclude that no consideration of public policy will justify the refusal of a quantum meruit to the plaintiff for the services performed.
The judgment of the district court is therefore reversed and the cause remanded for further proceedings according to law.
Reversed and remanded.