Barber Asphalt Paving Co. v. Hunt

Sherwood, J.

This cause was tried without the intervention of a jury, and resulted in a judgment for the plaintiffs, enforcing the lien of certain tax bills, and from this judgment the defendant appeals.

The grounds upon which the defendant resists the payment of the tax bills in suit are two : First, that the ordinances in question were not passed and approved as required by the charter; and, second, that the work provided for in the ordinances was not let as provided in section 27, article 6, of the charter.

The charter provisions in respect to passing ordinances, article 3, section 22, are as follows : “No bill shall become an ordinance until the same shall have been signed by the presiding officer of each of the two houses in open session, and, before such officer' shall affix his signature to any bill, he shall suspend all other business, declare that such bill will now be read, and that, if no objections be made, he will sign the same to the end that it may become an ordinance. The bill shall then be read at length, and, if no objection be made, he shall, in the presence of the house, in open session, and before any other business is entertained, affix his signature, which fact shall be noted on the journal, and the bill immediately sent to the other house.” (2 R. S. 1879, p. 1584.)

Defendant put in evidence the journal of the house of delegates for March 20, 1883, which, after giving in full the report of the proper committee that these two bills were truly enrolled, proceeds as follows:

“The bills, as above, were read at length. No objection being made, Mr. Speaker Marriott, in the presence of the house, in open session, affixed his signature thereto, as required by the charter.”

Upon this fact being thus shown by the journal, the defendant contends that two of the charter provisions marked above, in italics, were not complied with, and, therefore, the ordinance passed is null. These provisions of the charter are copied from section 37, article 4, of our state constitution. And upon that section it has been ruled that a bill passed by the legislature became a law where the same was signed by the presiding officer of each of the two houses, in open session, that this provision was mandatory; but the other provisions, relating to mere matters of detail, were but directory, and as no objection was noted on the journal, the presumption would be indulged that the matters of detail were complied with; that the legislature proceeded by right and not by wrong. State ex rel. v. Mead, 71 Mo. 266. Here, the journal expressly recites that the signature of the speaker of the house was affixed in open session. On the authority of the case cited, it must be ruled that the bills in question became ordinances as against the objection already considered.

But it is urged that the bills failed to become laws because never returned to the house in which they originated.

Section 23 of article 3 of the charter provides:

“ Every bill presented to the mayor and returned within ten days to the house in which the same originated, with the approval of the mayor, shall become an ordinance.”

The testimony shows the bills, though signed by the mayor, were not thus returned, both houses having adjourned March 27, 1883, sine die, the day on which the bills were presented to the mayor for his approval. But the testimony also shows that the mayor, on the same day, filed the bills in the city register’s office on the day of their approval.

Section 28 of article 3 of the charter contemplates-that cases will arise where a bill shall not have been returned to the house where the same originates; and, besides, there is no provision in the charter that “no MU shall become an ordinance” which shall not be returned by the mayor to the house where the same originated. The same considerations, therefore, apply here as were applied in Mead's case, supra. And we hold the ordinances valid as against this objection also.

Section 27 of article 6 provides how bids for work shall be awarded, to-wit: That the board of public improvements shall “let out. said work by contract to the lowest responsible bidder, subject to the approval of the council.”

Upon this point it is insisted that such provision was violated, because the work of street paving, prescribed by the ordinances, was covered by letters patent, under which plaintiff held the exclusive right, and, therefore, there was no competition for said work. This point, though adjudicated in other jurisdictions, is a case of first impression in this state. In New York, it has been ruled under a statute requiring'all city work to be let “to the lowest bidder,” that the common counsel were not prohibited from letting a contract for paving a street with material, or in a manner not admitting competitive bids or proposals. In re Dugro, 50 N. Y. 513. This ruling was approvingly followed in Baird v. Mayor, 96 N. Y. 567. Prior to the time the subject was discussed in New York, a similar ruling had been made in Michigan. Hobart v. Detroit, 17 Mich. 246. These cases seem to us to rest upon the correct basis. It certainly was never intended that the city authorities should be unable to make a contract, however necessary to the public welfare such contract might be, if the article desired, or the manner of the performance of the contract, required the use of a patented article.' Such a construction of the charter we regard as “ sticking in the bar7c” and as subordinating the whole powers conferred on the common council to the meaning of two or three words contained in a single section of the charter. Besides, the rights of those interested are protected by the necessity of obtaining the approval of the council to any contract.

A different view of the matter under discussion has been taken in Wisconsin (Dean v. Charlton, 23 Wis. 590), but by a divided court, and it is noteworthy that the legislature of that state did not approve the view of the statute taken by the court, and changed the statute, so as to prevent the continued prevalence of the objectionable ruling. Mills v. Charlton, 29 Wis. 400; Dean v. Borchsenius, 30 Wis. 236.

For these reasons we affirm the judgment.

All concur, but Barclay, J., not sitting.