198 Ill. 571 | Ill. | 1902
delivered the opinion of the court:
There was no dispute as to the amount the plaintiff was entitled to recover, if he was entitled to recover at all, and the question is presented here' as one of law whether the trial court erred in refusing to hold as law in the decision of the case, the first proposition submitted by the plaintiff and in holding the first proposition submitted by the defendant. These propositions served the same purpose as instructions of similar purport to the jury would have served in directing a verdict had the cause been tried by a jury. The Appellate Court made no finding of facts and evidently found the facts the same way as the superior court found them, but was of a different opinion as to the legal effect of such facts, and therefore reversed the judgment and rendered judgment for the plaintiff, which was the proper action to take if the judgment of the superior court was erroneous.
From the facts as settled it appears that no fraud or imposition was practiced upon the plaintiff in any manner, but that the village authorities acted in good faith and without any negligence, and did not promise or agree to exercise any power they did not possess or to do anything they had no power to do; that the ordinance was incorporated in full in the contract, and that the plaintiff entered into said contract to construct the sidewalks with as full knowledge of all of the facts involving the validity of the ordinance, and of the contract itself, as the village authorities possessed. It must also be assumed from the finding, as a settled fact, that after the first ordinance was passed and the contract entered into the village used due diligence to collect the cost of the work from the lot owners, and stood ready and willing at all times, and so notified the plaintiff, to use any and all lawful means in its power, and to proceed in any proper way the plaintiff might advise or suggest, to collect from the lot owners such cost, and to pay the same, when collected, over to the plaintiff. The ground upon which the plaintiff contends, and the Appellate Court held, the village is liable, is this, as we understand it: that the village had the power to contract for the building of the sidewalks in question and to pay for the same out of its general revenues, and the ordinance purporting to authorize their construction and payment therefor by special taxation being" void, the sidewalks were in reality constructed by the plaintiff, at the request of the village, without any ordinance, and the village having accepted and received the benefit of plaintiff’s work and materials must be held liable to pay for the same, as fully as if it had undertaken in the first place to do so, out of its general revenues. It is said further in support of the plaintiff’s view, that where a private corporation has received money or other thing of value under a contract which is ultra vires, and which it refuses to perform on that ground, an implied contract arises to refund or to pay for what it has received on the nonenforceable contract, and that municipal corporations should be, and have been, held to the same liability.
We have no doubt that the ordinance was wholly void because it did not provide, in terms or by reasonable intendment, in the manner provided by the act of 1875, that the cost of the work should be paid from special taxes levied or to be levied on the lots touching upon the line of such sidewalks, in any one of the methods provided by the said act, — that is, according to frontage or superficial area, or to value ascertained as the statute provided; and because the ordinance required the owners of such lots to construct the sidewalk in front of their respective lots within ten days, instead of thirty days allowed by the statute, after publication of the ordinance. But without considering the soundness of the doctrine asserted or the extent of its application, no reason is presented, and we know of none, why this asserted liability is of so peculiar a character as that it may not be contracted against. It is not claimed that such a contract of a municipal corporation protecting its general revenues, and guarding against a liability which it might be wholly unable to meet and which it would not voluntarily incur, would be against public policy, and it is difficult to understand upon what ground such a contract fairly entered into can be declared void by the courts or inoperative for any reason. It would seem that the only question ought to be, what is the' meaning of the contract? As we have seen, the one - in question in this case expressly and in the plainest and most unequivocal language protected and guarded the village against any general liability whatever to pay for the work out of its general revenues, — against the very liability now asserted and by this suit sought to be enforced by the same party who knowingly and voluntarily entered into and executed the contract on his part. By the contract the. village only covenanted to pay when and as the special taxes levied for the same should be collected.» It provided for the issuing to the contractor of interest-bearing warrants payable out of such special taxes. It provided that no purchase of the property or other act of the village should be construed as a collection until the special tax should be paid into the village treasury. By the contract the plaintiff expressly agreed “to make no claim against said village in any event, except from the collections from the special taxes made or to be made for the said improvements, and to take all risks of the invalidity of said special tax, or any of them, or of the proceedings therein, or for failure to collect the same.” And in the vouchers or warrants issued to the plaintiff, and which he also signed and accepted, he agreed that in consideration of the issuing of the same to him he accepted them in full payment of the amount stated in them, and relinquished any and all claims which he might have against the village for the work mentioned and for the payment of the vouchers ¿xcept from the installment of the special tax therein mentioned. It cannot be assumed that the village would have entered into the contract or would have ordered the walks to be constructed without thus limiting its liability. On the other hand, it should be presumed from the facts found that it would not have authorized the work and incurred the indebtedness except upon the terms of the contract which it made with the plaintiff. No reason whatever is assigned why the plaintiff is not bound by this contract, except the one that the ordinance under which the work was done was invalid. But the law charges him with the same knowledge of the invalidity of the ordinance as it attributes to the village trustees, and if he was desirous enough to obtain the contract to agree to take all risks of the invalidity of the ordinance and of the special tax and of the proceedings to collect the same, no reason is perceived why he should not be bound by his agreement. Presumably, contractors often obtain higher prices for their work because of the assumption of such risks, and that not infrequently they obtain full satisfaction for their contractual demands under invalid ordinances because they are not contested. But be that as it may, it would be a dangerous doctrine to establish, that where there is no fraud, no concealment, no negligence and no wrongful act of any kind on the part of the municipal corporation affecting the rights of the other party to the contract, such other party may avoid his contract on the sole ground of the invalidity of the ordinance under which the work is done, notwithstanding he expressly assumed all risk of the invalidity of such ordinance and agreed not to make the very claim which by his suit he undertakes to assert. Courts have no power to make contracts for parties, or to un-make them, except upon well established grounds, and although upon principles of natural justice municipal corporations, like individuals, ought to pay for what they receive, they cannot be held bound to do so when the .claimants have expressly contracted that they shall not be so bound. If it be said that there was no consideration for such an agreement on the part of plaintiff, it is a sufficient answer to say that the undertaking of the village to do what it in fact did do was a sufficient consideration. But even if there was no consideration and the plaintiff had agreed to do the work without compensation and to make a gift of the same to the village, and although the contract, while it remained ex-ecutory, could not be enforced, yet after it had been fully performed by plaintiff he could not avoid it and recover the value of his work on the plea of no consideration.
It is contended, however, that this court has decided that the contractor can recover in such a case as this, and reference is made to Maher v. City of Chicago, 38 Ill. 266, and City of Chicago v. People, 56 id. 327; and City of East St. Louis v. East St. Louis Gaslight and Coke Co. 98 id. 415, and Foster v. City of Alton, 173 id. 587, are also cited as supporting the doctrine announced in the two first mentioned cases. In the Maher case the city, in its contract with the claimant, assumed a power which it did not possess, and the ordinance was held void for lack of power under its charter to adopt it. In the second case, as we said in Foster v. City of Alton, supra (p. 591), “the property other than that of the North Chicago Railway Company had already been assessed-and had paid the full amount of benefits realized, and the city had made a contract with the railway company by which its property was exempted from assessment: The contractor had done the work in ignorance of the agreement for exemption, and had been induced to accept a contract for payment out of an assessment which the city had agreed not to make but to exempt the property from.” Neither of these cases is like the one at bar in respect of the facts, though there are some expressions in the opinions lending support to the plaintiff’s view. The village did not, in the case at bar, assume to have a power which it did not possess, and procure money, work or other thing of value from the plaintiff upon the strength of any such assumption, as appears to have been done in the Maher case. Nor did it obtain from the plaintiff his labor and materials by concealing from him any facts within its knowledge affecting his rights, as was done in the second case cited. As a general rule, it will be found that in the cases in which the municipal corporation has been held to a general liability, there has been some wrongful act, negligence or default on its part which injuriously affected the rights of the claimant. But there is no such element in this case.
Something is said in the argument to the effect that the village had no power to make the contract as made, limiting its general liability, — in other words, that, like the city of Chicago did in the case in 56 Ill. 327, it assumed a power it did not possess and agreed to do what it had no power to do under its charter. We need not determine, under the law as it now is, what the effect of such an assumption of authority would be on the rights of the parties, for it is sufficient to say that the village did have the power to make and enter into the contract as it was made. True, as pointed out, the act of 1875 makes no express provision for limiting the liability of the corporation to payment out of the special fund, as made by section 49 of article 9, and by section 74 of the act concerning local improvements; but whether either of these provisions is applicable to the contract in question or not, we have no doubt that the corporation has the corporate power to limit its liability, by contract, to pay only out of the fund which the statute authorizes it to raise for such payment. Such a power, whether expressly given or not, is necessary to other powers express^ .granted, and will be implied.
The views we have expressed find some support in People v. Village of Hyde Park,’117 Ill. 462; Village of Hyde Park v. Corwith, 122 id. 441; Hunt v. City of Utica, 23 Barb. 360; (same case in the Court of Appeals, 18 N. Y. 462;) Fletcher v. City of Oshkosh, 18 Wis. 228; Clark v. White, 59 Ind. 435; Arment v. Yamhill County, 43 Pac. Rep. 653; Jacks v. Phillips County, 25 Ark. 64; Congdon v. Chapman, 63 Cal. 357; Chambers v. James, 4 Pa. St. 39; Lyman v. Northern Pacific Elevator Co. 62 Fed. Rep. 781; City of Pontiac v. Talbot Paving Co. 94 id. 65; Hayes v. O’Brien, 149 Ill. 403. See, also, Farrell v. City of Chicago, (ante, p. 558,) and cases cited.
We are of the opinion that the superior court decided correctly in holding the defendant’s first proposition and in refusing to hold the plaintiff’s firs;t proposition as law in the decision of the case and in rendering the judgment it did render, and that the Appellate Court erred in reversing that judgment and in rendering judgment of its own for the plaintiff. The judgment of the Appellate Court will therefore be reversed and the judgment of the superior court will be affirmed.
Judgment reversed.