80 Neb. 591 | Neb. | 1908
This is an action to recover from the city of Omaha a balance on a contract for grading a part of Mason street in that city, and is for the second time before this court for consideration. The former opinion appears in 76 Neb. 187, where a sufficient statement of the facts will be found. After the cause was reversed and remanded, a second trial was had in the district court, resulting in a judgment for the plaintiff, and from that judgment the defendant has appealed.
The second trial in the district court was upon the same issues that were presented in the first, and the same issues are now involved that were presented when the case was first before us. Several questions are argued with much earnestness in the very able and elaborate brief of the appellant, but the case must be disposed of upon the ques
Appellant urges most strenuously that the city council did not have the power to make the contract until a petition, signed by the oAAmers of a majority of the foot frontage, had been filed asking for a change of grade, and that until such petition had been filed the action of the mayor and council in aAvarding the contract was not within their power, and the contract was therefore ultra vires. In this view we cannot concur. The poAver to change the grade of the street was vested by statute in the mayor and council. No new legislation was necessary to authorize such action. The power to change the grade is conferred by section 199, ch. 12a, Comp. St. 1903. Said section and the ones immediately following prescribe the manner of exercising this power. As long as the city was authorized to change the grade of the street under the legislation then existing, it cannot be properly said that, because the manner of exercising that poAver laid doAvn by the statute was not strictly followed, the action of the mayor and council Avas ultra vires. Properly speaking, ultra vires contracts of a municipal corporation are such as the corporation has no power to make under any circumstances or for any purpose. A contract of a municipal corporation is ultra vires in its proper sense Avhen it has no poAArer under the existing legislation under any circumstances to enter into such contract. Such a contract, of course, is AAdiolly void and gives rise to no rights. The objection to such a contract is not merely that the corporation should not have
With reference to the statute of limitations, appellant contends that that question Avas not decided by the trial court on the first trial, and that it Avas not properly before this court upon the former hearing. HoAvever that may be, it does not in anywise affect the correctness of the holding. In the case of City of Omaha v. Clarke, 66 Neb. 33, cited in the former opinion, it Avas held that, where an award had been made by the proper city officers upon a claim for damages, the statute did not begin to run until the time of the filing of the award, and that such award Avas a record obligation in Avriting on which an action would lie for five years. In the case of Abrahams v. City of Omaha, ante, p. 271, it Avas held that a Avarrant issued by the proper authorities of the city in consideration of a valid indebtedness against it is a Avritten acknowledgment of such indebtedness and a promise to pay it, and arrests the running of the statute of limitations. So far as the statute of limitations is concerned, that case is identical Avith this one. In both actions Avarrants were issued against a special fund which had never been created, and where the city became liable upon a contract obligation. The holding in that case is conclusive in this case. The action was not barred by the statute of limitations.
It folloAvs that the judgment of the district court is right, and should be affirmed. ,
Affirmed.
