City of Mena v. Tomlinson Bros.

| Ark. | Apr 19, 1915

Kirby, J.,

(after stating the facts). Appellant contends that the contract of Tomlinson Brothers, with the city, is void, for the reason that it was not made by the ■board of public affairs of the city, and that the ordinance prescribing its terms was not passed by the city council at a legal meeting, land in the manner required by law.

The board of public affairs of a city of the first-class is given exclusive power to make certain purchases for the city and required* where the 'amount of the expenditure involved exceeds $300, to transmit an estimate thereof to the council, with a recommendation in relation thereto, etc. Kirby’s Digest, § 5643.

Section 5607, Kirby’s Digest, provides: “The city council shall possess all the legislative powers granted by this act and other corporate powers of the city not herein prohibited, or by some ordinance of the city council made in pursuance of the provisions of this act, rand conferred ■on some officer of ‘the city; they shall have the management and control of finances, and of all the property, real and personal, belonging to the corporation; they shall provide the times .and places of holding their meetings, which shall at 'all times be open to the public; and the mayor, or any three .aldermen, may call special meetings in such manner as may be provided by ordinance. * * * ”

A majority of the whole number of aldermen shall be necessary to constitute a quorum of the city council for the transaction of business. Section 5601, Kirby’s Digest.

Section 5473 provides: “On the passage of every bylaw or ordinance, resolution or order, to enter into a contract, by any council of any municipal corporation, the yeas and nays shall be called and recorded; and to pass any by-law or ordinance, resolution or order, a concurrence of a majority of a whole number of members elected to the council shall be required.”

(1) The city council had the power to pass the ordinance providing for lighting the streets, parks and other public places in the .city and when it was properly passed and accepted by Tomlinson Brothers, it became a contract, binding on the parties thereto and such contracts are governed by the same rules .and principles that control other contracts. Kirby’s Digest, § § 5443-5448; Lackey v. Fayetteville Water Co., 80 Ark. 108" date_filed="1906-07-23" court="Ark." case_name="Lackey v. Fayetteville Water Co.">80 Ark. 108.

(2) The board of public affairs had no authority to provide for, construct or acquire, works, for lighting the streets, parks and other public places of the city by electricity, nor to authorize the construction thereof, the power being expressly given to the municipal corporation to be exercised necessarily by the city council. Lackey v. Fayetteville Water Co., supra.

There is nothing in the statute providing for the appointment of the board of public affairs and prescribing its duties, authorizing it to make a, contract, where the amount of the expenditure involved may exceed $300, without an ordinance of the city authorizing it, when it becomes the duty of the board to advertise and let the work on contract to the lowest responsible bidder, under the terms of the ordinance.

If is true the ordinance was passed on a day other than the regular meeting day of the council. On the reg-■M'ár meeting day 'there was less than a quorum present, and they'adjourned to another day on which there was not a quorum present, mid they adjourned until the 27th of February, 19Í3, when the mayor and all the aldermen of the city were present, held a meeting of the council and the ordinance was duly passed, the yeas and nays being called and recorded, and five of the six aldermen voted in favor of the ordinance, and one against it.

The council had the power to provide the time for holding their regular meetings, .and the mayor or any three aldermen are given the power by law to call special meetings in such manner as may be provided by ordinance. The meeting at which the ordinance was passed was not a regular meeting, nor was it one attempted to be called by the mayor or three aldermen in accordance with the provisions of any ordinance. It was held on the second adjournment by less than a quorum from the regular meeting day, and although the law requires a majority of the whole number of aldermen to constitute a quorum for the transaction of business, the adjournment of the council to another day because of the lack of .such quorurri is not the transaction of business within the meaning .of the 'statute, requiring the presence of a quorum.

(3) In this country the rule is generally recognized in .all bodies exercising legislative functions that the minority, less than a quorum, has the right to adjourn the meeting to another day for lack of a quorum. 2 McQuillan Municipal Corporations, § 595; Kimball v. Marshall, 44 N. H. 465; State ex rel. Parker v. Smith, 22 Minn. 218" date_filed="1875-10-07" court="Minn." case_name="State ex rel. Parker v. Smith">22 Minn. 218.

And even if it could be held .that the adjournment of the regular meeting for lack of a quorum to another day would not constitute the meeting of the council upon the adjourned day, a legal meeting, as a continuation of the regular meeting, that .alone would not invalidate the ordinance which would be valid, if passed at a .special meeting, held as provided by law. It appears that the city council of Mena had not provided by an ordinance for the calling of special meetings, but the mayor and three aldermen had adjourned the regular meeting to the day on which, the ordinance was passed, and on that day all the aldermen of the city were present and participated in «the council meeting and passed the ordinance prescribing the terms of the eontraet.

(4) The proceedings of a special meeting duly called would be legal, if all the members had notice, whether all attended or not, and when «all the members of the council are voluntarily present in a council meeting and participate therein, it is a legal meeting for all purposes, unless the law provides otherwise., State ex rel. Parker v. Smith, supra; Lord v. City of Anoka, 36 Minn. 176" date_filed="1886-12-09" court="Minn." case_name="Lord v. City of Anoka">36 Minn. 176; Magneau v. City of Freemont, 27 American State Reports, 436, 9 L. R. A. 786; 28 Cyc. 329.

(5) There is nothing in the statutes prohibiting the passage of an ordinance at «such a meeting, and having been properly passed, it is valid. The appellees accepted its terms in writing, in accordance with ithe provisions thereof, and it became a binding contract.

No time is fixed by the ordinance when the installation of the lighting .plant should ’be completed «and the failure of the appellees to reduce the cost for lighting under commercial contracts to private consumers on the date fixed in the ordinance, under the circumstances, the delay of the construction of the plant being occasioned .by the attempt to refer the ordinance to the electors for their approval and no action being taken by the city to forfeit the contract because thereof, would not relieve the city from its obligation to pay for the lights furnished it, in accordance with the terms of the contract.

It is undisputed that the lights were furnished in «accordance with the terms of the ordinance for the time charged for and at the price agreed upon, and the court did not err in instructing the verdict.

The judgment is affirmed.