24 Or. 118 | Or. | 1893
delivered the opinion of the court:
This action was brought by the appellants to recover seven hundred dollars damages on account of an alleged breach of contract. The plaintiffs, in substance, allege that the defendant, prior to January 2, 1892, duly levied a
The defendant denies the material allegations of the complaint, and for a separate answer alleges that the ordinance approved December 28, 1891, was not posted until December 31,1891, and did not go into effect until January 3,1892, one day after the execution of the alleged contract; that plaintiffs had not, at the time they were so notified, furnished any material or labor thereon. For a second separate defense the defendant alleged that prior to the execution of plaintiffs’ alleged contract, defendant had entered into a contract for lighting the city for a term' of five years at seventy-five dollars per month, amounting to four thousand five hundred dollars; that it had also purchased a fire engine for nine hundred and fifty dollars,
The appeal presents but one question, — did the answer contain a defense which entitled the defendant to a judgment for want of a reply? It is only necessary to consider one of these defenses, as we think that is decisive of the case. The complaint alleges that the ordinance of December 28, 1891, had been duly posted as provided by law, and duly went into force and effect, but it does not allege that it was in force at the time the contract was executed, on January 2, 1892, while the answer directly alleges that said ordinance was not in force at that time. Subdivision 18 of section 28 of the charter of Sellwood, filed in the office of the secretary of state, February 25,1889 (Session Laws, 1889, p. 503), gives the council power “to provide for the erection of a city jail.” Section 29 provides that the power and authority given the council by section 38 can only be enforced and exercised by ordinance, unless otherwise expressly provided. Section 28 contains forty-one subdivisions giving power to the council. Section 29 probably refers to section 28 instead of section 38, which relates to the manner of taking an appeal from the action of the council to the circuit court. No jail could be erected without an ordinance for that purpose. When the mode of procedure is specially and plainly prescribed and limited, that mode is exclusive, and must be pursued, or the contract will not bind the corporation: Dillon, Municipal Corporations, § 449. Section 14 provides that within three days after the passage of an ordinance, copies of the same shall be posted in at least three public places in said city, and all such ordinances shall take effect within five days
APPIRMED.