5 Dakota 54 | Supreme Court Of The Territory Of Dakota | 1888
This action was instituted by the plaintiff upon-a warrant issued to it by the city of Chamberlain for the sum. of $ 1,600, bearing date the 15th of December, 1883, the consideration for which was certain pipes used in the construction, of water-works in and by said city. The court found the purchase by the city, the delivery of the pipes, the acceptance and., appropriation of them in the construction of its water-works,,.
There is no controversy about the facts, but the claim was resisted below on the alleged ground that the city had no authority to contract for said articles without having first passed an ordinance by the city council authorizing it to be done.
The case was tried to the court, by consent, without a jury, and judgment rendered in favor of the plaintiff. It is sought by appellant to reverse that judgment in this court upon three grounds, to-wit:
1. That the city council of Chamberlain did not pass an ordinance authorizing the construction of water-works, or the purchase of the articles for which said warrant was given.
2. That the judge who tried the case below made no findings of fact or conclusions of law preceding the judgment.
8. That the judgment was not rendered in the district in which the case was pending and tried.
As to the first point it is admitted that there was no ordinance passed by the city council on the subject of erecting waterworks, or the purchase of material therefor. The question then is, was it necessary that such should have been done in order for the city council to make the contract sued on ?
An ordinance is simply another name for a law or statute, except that it is an enactment of an inferior legislative body, such as a city council. The corporation derives its authority from the statute creating it, and can confer no authority upon itself by the enactment of an ordinance.
The powers and duties of the city council of the city of Chamberlain are of two kinds, — legislative and administrative; legislative, to pass laws for the general government of the people within its corporate limits; administrative, to transact the business and financial affairs of the city, and make and enter into contracts to that end.
This is not strictly a question of ultra vires, for it is admitted that the city council has the power, under the charter, to build
This might be true if the city charter put such a limitation upon the powers of the council on this subject, expressed or implied. After a careful examination of that instrument we find no such limitation, and therefore conclude that it was unnecessary that an ordinance should have been enacted. Gas Co. v. San Francisco, 9 Cal. 453; Green v. City of Cape May, 41 N. J. Law, 45; City of Quincy v. Railroad Co., 92 Ill. 21; Messenger v. City of Buffalo, 21 N. Y. 196.
But conceding that an ordinance of the city council should have preceded this contract, and that there was, for this reason, a technical want of power to make it, still the appellant received and retained the property of the respondent furnished at its instance and request, and enjoyed the use and benefit thereof. It cannot, therefore, be heard to object that it was not empowered to do what it promised in return, simply because the manner of entering into the contract was not strictly in accordance with the mode prescribed by its charter, but not ultra vires as to its provisions. Hitchcock v. Galveston, 96 U. S. 341; Moore v. Mayor, 73 N. Y. 238; Board, etc., v. Railway Co., 47 Ind. 407. In the case last cited the court says: “Although there may be a defect of power in a corporation to make a contract, yet if a contract made by it is not in violation of its charter, or any statute prohibiting it, and the corporation has by its promise induced a party relying on the promise, and in the execution of the contract, to expend money, and perform his part thereof, the corporation is liable on the contract.”
This seems to us to be a correct statement of the law, and fully embraces within its scope the questions arising in the case at bar. Hence we conclude that the city of Chamberlain, having induced the respondent by its promise, through the action of its council, to part with its property in the performance of its part of a contract not in violation of the corporate
The answer to the second objection is that the judge did make and file findings of fact and conclusions of law, and the same are “in writing, and filed with the clerk as required by law.”
It is upon the alleged failure of the judge to affix his signature to the findings and conclusions of law that counsel for appellant contend that there are no such findings and conclusions of law made by the judge.
The record shows that the findings of fact and conclusions of law are made a part of the judgment roll, are located preliminary to the judgment itself, are referred to in the judgment, and the findings of fact, conclusions of law, and judgment are all preceded by the following declaration made by the judge: “In this action, tried before the court, I make and file the following findings of fact and conclusions of law.” By following these and the judgment to the end, we ascertain who has made them by seeing the signature of the judge attached thereto. They are all part of one record, and are signed by the judge of the court. The point is not well taken.
In the third and last objection it is contended by counsel for appellant that the “judgment was not rendered within the district wherein the cause was pending and tried.” This statement seems to be based upon facts aliunde the record, for the - record discloses the fact that the judgment was rendered in the district in which the cause was pending and tried. It is by the record that we are governed, and aliunde statements in contradiction thereof cannot be considered.
The judgment of the district court is in all things affirmed.
