The only question in this case is as to the
The defendants insist that such action of the court was erroneous, for the reason that, under the charter of the City of Kansas, it is not lawful for the city to make .any contract with a party for work of the character in suit, for which the party holds an exclusive patent, and with whom there is and can be nо lawful competition.
The only provisions of said charter which can have any bearing upon this question are as follows:
“All сity improvements, of whatever kind or character, including the erection of all public buildings, made or to be erected at the expense of the said city, shall be let by contract to the lowest and best bidder, and as shall be prescribed by ordinance ; provided, that nothing in this section shall be so construed as to prevent the repair, by days’ work, of streets, sewers, culverts, buildings, оr other city property, so far as may be necessary to their preservation, under the direction of the city engineеr, or other proper officer, when such repairs shall have been ordered to be made by a vote of the cоmmon council.”
Do these provisions of the charter apply to work done, not at the expense of the city, but at the expense •of the adjacent property holders ?
Unless these provisions have such application, the demurrer to the second count of the answer was correctly sustained, because the work in suit was done at the expense of the adjacent property holders.
Do the explanatory and descriptive words “made or to be erected аt the expense of the said city,” refer to and qualify “improvements,” or “buildings,” only? It is true, as argued by defendants, that in questions of construсtion, punctuation is entitled to very little, if to any, consideration. It does not follow, however, that we should construe the abоve provisions of the charter as if there was no comma after the word “buildings,” simply because a comma does not оccur there. We can
The plaintiff says that the explanatory words mentioned qualify “improvements;” the defendants say that those words qualify “ buildings,” only. The defendants, in support of their positiоn, simply assert that the position of plaintiff depends upon the comma mark after the word “buildings.” They present no reason why thе comma should not be there, where it is. They do not attempt to do so. It is true that the plaintiff’s position does depend upon the fact that said mark should be there, in order to express the intention and meaning of the legislature ; but it is incorrect to say that such position depends upon the fact that said mark is there.
We think-that the explanatory words qualify “improvements,” as well аs “buildings;” that the comma mark is correctly placed after the word “buildings,” and that the meaning of the provisions is the same as if they rеad as follows: All city improvements, of whatever kind or character, made or to be erected at the expense of the said city, including the erection of all public buildings, etc.
We do not think that those explanatory words ■qualify “buildings,” only, for several reasons. It is not usual to .speak of a building being made, or of the erection of a building to be erected. Such would be the еffect of making those words qualify “buildings.”
It was needless to so explain and qualify the meaning of “public buildings,” as used in those provisions of the charter. The city authorities could erect no public buildings except at the expense of the city. To explain thаt the public buildings intended were those erected at the expense of the city was useless.
But improvements of the character in suit might, or
It is argued by the counsel for the defendants, against this construction, that the оfficers of Kansas City have placed the contrary construction on those provisions of the charter; that they have invariably acted in accordance with their construction by advertising for bids for all public improvements, whether done at the expense of the city or of the adjacent lot holders, and that contemporaneous construction of a statute, in cases-of doubt, turns the scale. It is a sufficient answer to make to this argument to say that such a course on the part of the officers of Kansas City is no indication of a construction by them of the provisions of the charter under discussion. Those provisions are not self-enforcing ; that is, the mode of advertising and accepting bids, etc., must be provided by ordinance. The сourse pursued by those officers has been in accordance with the ordinances of the city, and not with the provisions оf the charter. Notwithstanding the charter does not require, the ordinances might properly require the work of the character in suit to be done at the expense of the adjacent land holders, to be let to the lowest bidder. The defence sеt up in the answer was, however, based upon the requirements of the charter, and not of the ordinances. The ordinances were not pleaded. Judicial notice of them will not be taken, where a cause of action or defence is based upon them.
We hold that the requirements of the charter do not apply to the work in suit. It is unnecessary for us, under this view of the сase, to express an opinion upon
Judgment affirmed.