City of Galveston v. Morton

Willie, Chief Justice.

In order that the appellee might successfully maintain this action below, it was necessary for him to prove a contract entered into between himself and the city to do the city printing for the municipal year commencing in March, 1876. To establish this he proved a resolution duly passed by the council authorizing the printing committee to advertise for bids to do the city printing for that year; also a bid put in by himself, which was the lowest, and which, owing to certain circumstances, was referred for action to the council; also the action of the council thereon, who, upon motion of a member, accepted his offer; also the filing by him of a bond conditioned as required by the council and approved by their chairman of the finance committee. It was proved on the part of the defense that this action of the council was vetoed by the mayor, and upon reconsideration the veto was sustained; and the defense claimed that this defeated the contract, and the appellee had no claim against the city for not complying with it. The court below held that the action of the council was subject to the mayor’s veto, but that he did not comply with the requirements of the charter in sending in his objections; that the veto was therefore of no effect, and the subsequent proceedings of the council sustaining the objections were void, and hence the contract became of binding force by reason of the original vote of the council. In this we think the court erred.

The ground' upon which the district judge based his decision was, that the objections of the mayor must be returned to the council within three days after the passage of the ordinance or resolution which he proposes to.veto. The charter in terms makes no such requirement. The resolution or ordinance, when passed, is placed in the clerk’s office, where it remains for three days before going into effect, and where it awaits the veto, or express or silent approval, of the mayor. Should he disapprove, he is commanded to return it to the city council; but nothing is said of such return being made in three days. This is inferred by the court below from the fact that the ordinance remains in the clerk’s office waiting for the mayor’s action for that length of time. Our inference is, that as the objections are returned to the council with the ordinance vetoed, they must be placed with it in the clerk’s office and there await a session of the council, and when this occurs they are sent in together for action. Otherwise, by a refusal of a sufficient number of members to attend and form a quorum, a veto could at any time be prevented.

But in the view we take of the case this ruling becomes of no importance. We are of opinion that the contract was completed when adopted by the board of aldermen, and that it was not subject to the mayor’s veto.

The charter requires that all ordinances and resolutions, before they take effect, shall be placed in the clerk’s office for action by the mayor. This was neither an ordinance nor a resolution in the proper sense of the term, so as to be liable to objections on the part of the mayor. It is not termed such in the proceedings of the council, and has none of the features of either. It was a verbal motion, and referred solely to the acceptance of a proposed contract on the part of appellee. Contracts are made by corporations in various ways. They may be made by the council direct, or by agents appointed by the council with power'to act, and by agents whose acts, although unauthorized originally, are afterwards ratified by the proper authorities. The authority is often implied when neither given originally and no ratification follows. The resolution originally adopted, Avhich was passed regularly through the ’council and approved by the mayor, authorized certain agents to publish for bids to do the printing. This resolution did not say that these agents were to accept the bids, or that anyone else was to do so. The inference would seem to be, that the persons who Avere to do the advertising and receive the bids were also to accept or reject them. This seems to have been the construction of the committee themselves, or they Avould not harm assigned special reasons for referring the matter to the council. Be this as it may, it was owing to this reference that the council seem to have taken the matter into consideration. A motion Avas then made to award the contract to appellees, and carried almost unanimously. This transpired in reference to the matter of making an agreement for the city printing, something that could have been done by an agent by authority of the council without any subsequent ratification on their part, and been as binding as if sanctioned by that body and approved by the mayor. San Antonio v. Lewis, 9 Tex., 69.

It is certainly not necessary to go through with the forms of passing an ordinance or a resolution, and having the same approved by the mayor, to do a thing which a .single agent could have done for the corporation, and bound it, without any approval on its part of his course. Our view is, that it is only in cases where the council is taking action which partakes of the nature of legislation that the veto of the mayor can be interposed. But that in the mere-matter of accepting a contract authorized by a previous resolution or ordinance, the mayor has no authority to defeat the will of the aldermen so as to compel a two-thirds vote to consummate the agreement.

In Gas Co. v. San Francisco, 6 Cal., 190, a contract was made with the company for lighting the city with gas, which was to be subject to the approval of the common council. It was approved by the council by resolution, which was not submitted to the mayor for approval. The court held this approval not necessary, and the contract complete.

And so in this case, we are of opinion that when the council voted to give the contract to appellees, the contract was consummated without submitting the vote to the mayor for approval.

But a question arises as to the power of the city to repudiate her contracts for printing, though properly made, on the ground that the employment of a printer under the charter lasts only till a new one is selected: Art. V, sec. 1, title X, of the charter, provides 16 that the city council shall, as soon as may be after the commencement of each municipal year, contract (as they may by ordinance or resolution determine) with a public newspaper of the city as the official paper thereof, and to continue as such until another is selected,” etc. It is contended that this gives the city the power to select a new printer whenever it chooses, and by necessary implication allows it to discharge the one already employed. Hence that the appellee had no cause to complain of his agreement having been repudiated, as he contracted with full knowledge of the powers of the city under this section. We do not concur in this view.

By requiring the city council to make the contract as soon as possible after the commencement of each municipal year, the charter intended to make these contracts to continue a year. By providing that they should continue till another paper was selected, it probably intended to fix the term of the employment so that it should last till the city should select another paper after the commencement of a new municipal year. The requirement of an annual appointment was in the interest of economy, as better rates could be had for a long term than for a short one. It is hardly to be supposed that it would give the power to discharge the printer at will, when no one would accept employment on such terms. To carry out the contract, much preparation on the part of the printer would have to be made and expense incurred. At least such was the case in this instance, bio one would make such preparation and incur .such expense to undertake a contract existing' only at the will of the council.

[Opinion delivered January 26, 1883.]

But admitting that a new printer could, under the charter, be selected at any time before the expiration of the year, it was not out of the power of the city to contract upon a good consideration that she would not do so, which was the effect of the contract in this instance. The city would lose nothing by a failure on the part of the printer to perforin his contract, as it could then rescind it, as in the case of contracts between individuals when violated by one party to them.

We think the contract was consummated by the action of the council, and was not subject to the veto, nor liable to be repudiated by the city because of her right to select another printer, and that the appellee is entitled to recover the damages assessed in his favor.

Whilst the court erred in its charges as we have held, the same result was obtained as if he had charged the jury in accordance with this opinion. The contract is held binding under the charge as well as under this decision, and the verdict of the jury which sustained it for erroneous reasons will not be disturbed where it is correct upon a proper view of the law. This court has always refused to set aside a verdict correct in itself because of an error of the judge in his charges, when, if a correct charge had been given, they would necessarily have come to the same conclusion. Merriwether v. Dixon, 28 Tex., 19.

The judgment below is affirmed.

Affirmed.