56 Neb. 403 | Neb. | 1898
In this case there has already been filed an opinion. (See North Platte Water-Works Co. v. City of North Platte, 50 Neb. 853.) When the cause was remanded there was filed an amended petition, and thereupon issues having been made up, there was a judgment in favor of the water-works company for $11,057.90, and the city, by proceedings in error, seeks a reversal of this judgment.
It was alleged in the amended petition that by 'assignment the water-works company became entitled to the right to perform the conditions required to be performed by its assignor and to compensation therefor; that it had performed these conditions by putting in certain hydrants through which water was furnished the city after the year 1887, and by a supplemental petition this performance was alleged to have been until January 1, 1898, and the prayer was for a balance in the aggregate of $11,057.90. In the opinion in this -case above referred to there was a full statement of the items making up the sum claimed, except as described in the supplemental petition, whereby was -added a claim for $6,822.47, which, as plaintiff alleged, had fallen due since the first petition was filed. By a .stipulation it was admitted that the payments pleaded in the answer were therein correctly set forth. Without going into details it must suffice to say that these payments were made in the years 1889, 1890, 1891, 1892, 1893, 1894, 1895, 1896, and 1897, and in the aggregate amounted to $18,406.22. We are not advised by the petitions why there were no averments showing for what particular years the hydrant rentals had not been paid; neither is this made clear by the stipulation, for its recitations on this subject were simply of the amounts paid in each of the "years above enumerated.
The ordinance by which the city of North Platte authorized to be furnished the hydrants and the water through said hydrants at a stipulated rental was adopted July 14, 1887, and was known as ordinance No. 62. It
Plaintiff in error relies upon the inhibitions embodied in section 89, chapter 14, article 1, Compiled Statutes. This section is in this language: “No contract shall be hereafter made by the city council or board of trustees, or any committee or member thereof; and no expense shall be incurred by any of the officers or departments of the corporation, whether the object of the expenditure shall have been ordered by the city council or board of trustees or not; unless an appropriation shall have been previously made concerning such expense, except as hereinafter expressly provided.” To sustain its contention of the applicability of the above section to the facts of the case at bar plaintiff in error cites City of Blair v. Lantry, 21 Neb. 247; McElhinney v. City of Superior, 32 Neb. 744; Gutta Percha & Rubber Mfg. Co. v. Village of Ogalalla, 40 Neb. 775.
In City of Blair v. Lantry, supra, the warrant was drawn for the payment of the purchase price of land to be used for an addition to a cemetery, and it was held invalid for the reason that n'o appropriation had been made to meet the expense of such purchase.
In McElhinney v. City of Superior, supra, there was an ordinance passed in November, 1889, by the provisions of 'which Robert Guthrie was given permission and author^ to construct and operate an electric light plant and power in the city of Superior and, for those purposes, granting him the right to use the thoroughfares and public grounds of the city. Afterwards in the same month there was passed another ordinance, by which the city contracted with Robert Guthrie to pay him $924 per year for the period of three years for eleven electric lights to be furnished, maintained, and operated by him at such points in the city as its council .should designate. The suit was brought by McElhinney, a resident and tax
In Gutta Percha & Rubber Mfg. Co. v. Village of Ogalalla, supra, the contract was for the purchase of certain fire apparatus. In these three cases the general rule laid down in City of Blair v. Lantry was applicable, for in each there was an attempt to enforce a contract in violation of section 89, chapter 14, article 1, Oompiled Statutes. In the section just referred to there is, however, a.n exception, within which the contracts contemplated in the three cases just reviewed were not embraced, and that exception was, in effect, that an appropriation was not necessary in cases in the statute otherwise expressly pro
It was stipulated that the city of North Platte was a city of the second class of less than 5,000 inhabitants; that it was divided into three wards, each of which was. entitled, to two councilmen; that in April, 1897, P. Walsh, Matt Hook, James Snyder, and W. J. Eoche were elected councilmen of said city and M. Oberst and E. Blankenburg held over;.that about June 20, 1897, Matt Hook resigned and the vacancy caused by his resignation was filled by appointment about August 1, 1897. In the progress of the consideration of the ordinance under Avhich the Avater-Avorks asserts its right to compensation the rules Avere suspended upon the affirmative vote of four members of the council, being all who were present at the time of such suspension, and under such circumstances and upon a like vote the ordinance was finally adopted. It is insisted by plaintiff in error that the ordinance is not binding upon the city, for the reason that in the suspension of the rule above noted there were but four affirmative votes,- Avhich constituted but two-thirds of the council. Under the provisions of section 79, chapter 14, Compiled Statutes, ordinances of a general or permanent nature must be fully and distinctly read on three
In Zeiler v. Central R. Co., 84 Md. 304, these were the facts: An ordinance of the .mayor and city council of Baltimore authorized the defendant to lay railway tracks upon certain streets. Plaintiff filed a bill for an injunction to restrain the construction, of the same, alleging that certain rules of procedure of the two branches of the city council had been violated in the, passage of the ordinance, and that it was consequently' void. The rules is question' were substantially as follows: Rule 9. Every ordinance shall have two readings on two separate days, unless two-thirds of the members of the branch shall by vote otherwise direct. Rule 15. Any standing-rule may be suspended upon the assent of three-fourths of the members present, except rule 9. An ordinance vyas passed under the suspension of the rules, which was ordered by the affirmative vote of fourteen members, which was two-thirds of the members present, but not tAvo-thirds of the entire body. It was held that under rule 9 a vote of two-thirds of the members of the branch present ancf Am ting not being less than a majority, was sufficient, and that a vote of two-thirds of -all the members of the branch was not necessary. The rule of construction enforced was that when a rule of the council provided that a vote of two-thirds of the members of a branch shall be necessary in certain cases, this means tAvm-thirds of the members present and voting and constituting a quorum, and not two-thirds of all the members
In Atkins v. Philips, 8 So. Rep. [Fla.] 429, the second paragraph of the syllabus correctly summarizes one proposition decided, in this language: “Where a municipal charter act provides that a majority of the members of the council shall be required to form a quorum for the transaction of business, and a rule of proceeding adopted by the council prescribes that a proposed ordinance may be passed on its first reading by a majority vote of the'members present and then placed on a second reading by a like vote, and, if passed on its second reading, may then be read as-passed as a whole on such second reading, but no ordinance shall be put on its third reading at the same meeting at which it is read the first time except by unanimous consent of the council, the term ‘unanimous consent of the council’ means all the members who may be present at the time the action as to putting the ordinance on its third reading is taken, whether a bare quorum or' more. It does not require that every member of the council shall be present and consent.”
Plaintiff in error, to meet the above cases, relies upon Downing v. Rugar, 21 Wend. [N. Y.] 178, Lee v. Parry, 4 Den. [N. Y.] 125, Powell v. Tuttle, 3 N. Y. 396, People v. Supervisors Chenango County, 11 N. Y. 563, Fuller v. Gould, 20 Vt. 643, Schenk v. Peay, 1 Dill. [U. S.] 267, and Williamsburg v. Lord, 51 Me. 599. These cases we have examined, and find that where they are in point they fall within this language used in Downing v. Rugar, supra: “The rule seems to be well established, that in the exercise of a public as well as private authority, whether it be ministerial or judicial, all the persons to whom it is committed must confer and act together, unless there
In Lee v. Parry, supra, it was held that a portion of the trustees authorized to apportion a school tax could not act.
In Powell v. Tuttle, supra, it was held that where an act required two commissioners to conduct a sale of rnortgag'ed lands a .sale by one of them was invalid.
In People v. Supervisors Chenango County, supra, it was held that one assessor could not make a valid assessment, but that it must'be made by all the assessors, or at least, by a majority of them upon a meeting of all.
In Fuller v. Gould, supra, an assessment had been made by assessors, one of whom afterwards entered upon the list a minute -that the assessment was vacated. It was held that the listers could treat this entry as an error and restore the assessment as it originally had stood.
The part of the opinion relied on in Schenk v. Peay, supra, referred to the force of a curative statute, and it was held that its provisions must be strictly construed.
The paragraph of the syllabus in Williamsburg v. Lord, supra, which is a reflex of the portion of the opinion relied upon herein, is as follows: “By law, the board of assessors can/not consist of less than three persons, who shall be qualified by taking the oath prescribed; and where it does not appear that more than two were thus qualified and acted, the tax assessed by them is illegal.”
■Prom these eases it appears very clearly that if we are to be governed by the opinion of other courts, we must hold that at the meeting where four councilmen were in attendance it was within their power by a unanimous vote to suspend the rule. There was required by the statute to suspend the rule three-fourths of the council, but in the passage of an ordinance the requirement of a concurrence of a majority of the whole number of mem
Affirmed.