Opinion
Argued April 19, 1883
Decided May 1, 1883
R.W. Peckham for appellant. Amasa J. Parker for respondent.
We think the judgment should be affirmed.
First. It is conceded that the common council had power to make the repairs and to purchase the articles, the making and furnishing of which constitute the claims in this action, and to contract debts therefor, binding upon the city. The several bills were presented to the common council, and were duly audited, and by resolution approved by the mayor, they were ordered to be paid. This was a legislative act within the legislative power of the common council. It is also conceded that the work and materials specified in the bills of particulars to which the audit related was done and furnished, and that the prices charged were reasonable. The defense is based upon the ground that the work was done and the materials furnished without any previous authority of the council, but (as appears) under the authority of individual members of the council, not authorized to bind the city or to contract debts in its behalf. The action of the city in auditing the accounts and directing their payment, not having been rescinded, is we think a conclusive recognition of the liability of the city, and precludes it from defending on the ground that it was not originally liable to pay the debts in question.
Second. Assuming that the city can only be charged upon proof of ratification of the unauthorized acts of the individual members of the council who ordered the work and made the purchases constituting the claims in question, we think the evidence justifies the finding that the city ratified the unauthorized transactions. The bills were presented to the council and were referred, as may be assumed, to the proper committee, and were reported back with a certificate of the committee indorsed on the bills respectively, to the effect that the committee had examined the account to which the certificate related, and found that the prices charged were reasonable, and that the expenditure "was duly authorized by the common council." The council thereupon audited the bills and by resolution directed their payment as above stated. It is claimed that this did not constitute a ratification, for the reason that it was not true, as reported by the committee, that the expenditure had been authorized by the council, and that, so far as appears, the council acted in ignorance of this fact.
The defendant relies upon the rule that to constitute a ratification by a principal of the act of an assumed agent acting without authority, it must appear that all the material facts were known to the principal at the time of the alleged ratification. The difficulty in the application of this rule here is that there is no reason to infer that the council, in auditing the bills and directing their payment, relied upon the fact stated in the report of the committee that the expenditure had been duly authorized by the council, but on the contrary it is a just inference from the circumstances that it acted independently thereof and without reference thereto. It is claimed by the learned counsel for the defendant that no part of the indebtedness had been authorized by any resolution of the council. This is not, perhaps, true, to the full extent of the claim. But it is true as to a part of the work and materials constituting the indebtedness claimed, and this was ascertainable at the time by a comparison of the resolutions of the council appearing on its records, with the items in the bills. The common council was chargeable with knowledge of its records. A mere change in the individuals which compose the common council does not destroy the continuity of the body, or relieve it from the presumption of knowledge of the official acts appearing of record of a former council. It is clear, therefore, that as to the part of the indebtedness, for the creation of which no authority whatever had been given by the council, the council is chargeable with knowledge of the fact, and cannot be deemed to have relied upon the statement mistakenly made in the certificate.
The other part of the indebtedness was authorized by the resolution of May 27, 1878, that is to say, that resolution authorized and directed the committee on public buildings to make repairs of the same character as those which the claimants were employed to make. The defect was that the work, instead of being ordered by the committee collectively, was ordered by one or more members thereof, without any action of the committee as such, and in some cases against the protest of other members. In a sense the certificate of the auditing committee as to the fact of the indebtedness was true. The expenditure was ordered to be made by the common council, but the requirement that it should be made under the direction of the committee, as such, was not followed. It is a reasonable inference from the circumstances that the council, in auditing the bills and directing their payment, intended to adopt the transactions out of which the indebtedness arose, and that it did not rely upon the particular fact stated in the report of the auditing committee, that the expenditure had been previously authorized by the council. As to part of the bills, the council, as has been said, is chargeable with knowledge that the fact was not true, and as to the other bills it was true sub modo. It appears, moreover, affirmatively, that when the bills were reported back by the committee, the only thing said was that the committee reported the bills and recommended payment. The clause in the charter, prohibiting any member or members of the common council to incur any expense in behalf of the city for repairs or supplies, unless previously ordered by the common council, does not limit the legislative power of the council, or prevent the city from paying a debt for work, labor or supplies of which it has received the benefit, although it was originally created under the direction of a member or members of the council, in excess of his or their authority. ( Peterson v. The Mayor, etc., 17 N.Y. 449.)
We think the judgment should be affirmed.
All concur.
Judgment affirmed.