Jackson Electric Railway, Light & Power Co. v. Adams , 79 Miss. 408 ( 1901 )

CalhooN, J.,

delivered the opinion of the- court.

The declaration sets up that in July, 1897, the city of 'Jackson, on a contract with an association of persons, required a deposit of $1,500, to be forfeited to the city in case of failure to build and put in operation an electric light plant and street railroad ; that the forfeiture became complete by a failure; that in August, 1898, the city contracted with appellant, granting it franchises in consideration that it would construct the plants; that in'August, 1899, the city passed a resolution accepting the work of the appellant as a compliance with the contract, which resolution ordered the $1,500, in its possession as forfeit from the former contract to be paid over to appellant, which was done, and the action is to recover this money from the city. In this attitude the case was here before on demurrer to the declaration, and we held (78 Miss., 887; 30 So. Rep., 58), that the revenue agent could sue, and that the money was recoverable. On remand of the case to the circuit court, the defendant below, the present appellant, filed a plea setting up the contract between the city and the association, or partnership first above alluded to, the deposit as forfeit, and the forfeiture. It then proceeds to aver that, when the $1,500 deposit was about to be forfeited to the city, one Howard, representing the former association or partnership, which was styled the “Jackson Railroad & Light Company,” was, after the time his firm was to complete the work had passed, by the board of mayor and aldermen, ‘‘ told ’’ that, “if he would then secure” others to do the work, they would return him the $1,500 so deposited and forfeited, whereupon he induced Carnes & Corson, a partnership under the style of appellant, to undertake it, whereupon he and they had ‘ ‘ a conference ’ ’ with the mayor and board of alderman, who agreed to return to said Howard the $1,500, so forfeited, if Carnes & Corson would build and equip the plants by a time fixed; that the board then granted the same, or nearly the same, franchises as before given to Howard and his associates; and that thereupon Carnes & Corson offered to make the $1,500 deposit, but, upon the suggestion of the mayor in open meeting, that it was useless to take out the Howard $1,500 deposit and put in its place $1,500 of Carnes & Corson, and the direction of the mayor to Carnes & Corson simply to pay the money to Howard, they did so ‘‘ under the direction of the mayor and board of alderman ; ” and the plea avers that Carnes & Corson had previously agreed to make this $1,500 deposit. The plea then avers a subsequent written agreement between the city and Carnes & Corson to the effect that, if they would complete and put in successful operation both the railway and the electric lighting plant, the city would turn over to them the $1,500, and that Carnes & Corson did complete the work as per their contract. The circuit court sustained a demurrer to this plea.

It should be noted and borne in mind that there appears nothing in the ordinances or resolutions of the board, or in the written contract between it and Carnes & Corson, all made a part of the plea, by which Carnes & Corson are under any sort of obligation to make any deposit whatever. This cannot be supplied by the averments of a plea at law of contemporaneous or previous parol understandings or agreements. Those who deal with a municipality in matters of the nature shown in the case at bar, must deal with its board as a board, and can supply no act required to be by ordinance or resolution by agreements with any or all of its component members. He is also conclusively presumed to deal with full knowledge of the constitutional and statutory powers of the body. He acts at his peril if he contracts, even with the board itself in open session, speaking through its minutes, in a matter beyond its powers. This, however, does not conflict with the beneficent rule that, if the municipality gets money or other property pursuant to an ultra vires contract, it cannot plead the ultra vires and still hold the property. Does this case fall within that category? When Howard and his associates failed to perform their contract, the deposit of $1,500 became the money of the city of Jackson. It could part with it only by specific appropriation made by order of its mayor and board of aldermen. Code 1892, § 3003. Even by such solemn order it could not release it to Howard, or to any assignee of his, because such act is expressly forbidden by sec. 100 of the constitution of 1890. To do this it can find no shelter in code 1892, § 2986, because from the context, collocation and grammatical construction of that section, it plainly has reference only to the remission of fines, forfeitures and penalties pertaining to criminal procedure, and even then such remission cannot be made except “by and with the consent of the board of aldermen.” The $1,500 then being the money of the city, which it was powerless to give back to Howard because of sec. 100 of the constitution, it is equally plain it was powerless to give it to Carnes & Corson, because sec. 183 of the constitution expressly forbids it to make any appropriation in aid of their association. We cannot deal with any question of hardship to appellants. Certain it is that the city is minus $1,500, which sum was its own, and, if appellants have it, they should return it, although we sympathize with them in what they may lose.

Affirmed.