Opinion
No. 32732.
May 10, 1937.
1. MUNICIPAL CORPORATIONS.
Statute authorizing municipalities to acquire, own, and operate airports and "to do all things and perform all acts necessary, proper or desirable to effectuate the full intent and purpose of this act" held to include power and authority to contract and pay for proper or necessary engineering work in connection with airports (Laws 1934, chap. 317).
2. MUNICIPAL CORPORATIONS.
Municipality in absence of statute to the contrary may ratify previously unenforceable contract, which municipality had power to make, when work has been done and benefits thereof received.
3. EVIDENCE.
As respects town's liability to engineer for work performed on airport under oral contract, which was subsequently ratified, court would assume that funds were in hand when contract was made, since officers are presumed to have followed law, unless contrary expressly appears (Code 1930, sec. 5979; Laws 1934, chap. 317).
4. MUNICIPAL CORPORATIONS.
Town held liable for engineering work performed on airport under oral contract which was ratified, notwithstanding ratification contained provision that payment to engineer was to be made when funds were available, where in view of lack of showing that funds were not available at time oral contract was made, condition in ratification merely meant that at time of order of allowance funds were not in treasury and hence no warrants payable at once could be ordered, but board of aldermen had duty to make funds available within reasonable time (Code 1930, sec. 5979; Laws 1934, chap. 317).
APPEAL from circuit court of Simpson county. HON. EDGAR M. LANE, Judge.
W.M. Lofton, of Mendenhall, for appellant.
The declaration charges, or rather attempts to charge, that the contract entered into with the said appellee was for certain public work done by him on an airport on certain land directly south of Sanatorium, Mississippi, but fails to show that the said town of Magee had acquired, or was to acquire, any interest in said land, and also fails to show that any notice for the time and manner fixed by law was given by publication thereof in a newspaper published in said Simpson county for a period of three consecutive weeks or for any other period of time.
In order for the town of Magee to have made a valid contract, if this matter had been a subject over which it had jurisdiction it would have been necessary, the amount being $300, to have advertised in some newspaper printed and published in said Simpson county for a period of three consecutive weeks, and in order to maintain this suit it would be necessary for the plaintiff, appellee here, to show that all these requirements of the statute were made. This he has completely failed to do.
There is not a single solitary thing in this record to show that the said town of Magee ever attempted to make any sort of a contract with the appellee in this case, and there is nothing to show that it ever intended to do so. But if the said town of Magee had desired to make such a contract, it never resorted to any of the methods prescribed by law to make such contract.
Sections 3531, 3572, Code of 1930.
The municipal authorities are governed and controlled by the same law dealing with boards of supervisors, and in each and every case the law absolutely requires that notice be given as provided for by section 239 of the Mississippi Code of 1930, when the contract for public work amounts to more than one hundred dollars, and this requirement of the statute was not met. That being true the plaintiff absolutely has no cause of action against the Town of Magee.
Bridges Hill v. Board of Supervisors, 58 Miss. 817.
Contracts made with boards of supervisors are evidenced only by the entries on their minutes and boards of supervisors speak only through their minutes. And we insist that municipalities are governed and controlled by the same law, and that it applies with full force and effect against municipal boards.
Sections 2559 and 2560, Code of 1930.
Allen C. Thompson, of Jackson, for appellee.
Could the town of Magee enter into a contract, either verbal or written, with W.E. Mallett, Jr., appellee, for work as alleged in the declaration, a contract that would be legal and enforceable? The answer is "Yes."
Chapter 317, Laws of 1934.
It is clearly the law that a municipality can "acquire" an airport, and can make contracts in furtherance thereof, and can do all things and perform all acts necessary, proper or desirable to effectuate the full intent and purpose of this act. Applying the law to the present case the town of Magee, appellant, had the right to acquire and build an airport, even outside of the city limits, and had the right to contract with W.E. Mallett, Jr., for his services in beginning this work.
The appellee contends that no technical requirements were necessary for the contract to be enforceable. But even if the contract sued on was unenforceable by reason of noncompliance with some statutory requirement as the counsel for appellant claims, as the appellant was vested with power to bind itself by that contract, it ratified that contract, or estopped itself to deny the validity thereof, by procuring the performance of the work contracted for, by accepting the benefit of such performance, by paying part of the contract price for work contracted for, and by agreeing to pay the appellee the sum, although they did want to wait until funds are available. Where a contract is one which a municipality has power to make, though when the contract was attempted to be made, it was unenforceable by reason of some irregularity, there is no sound reason in law or morals for permitting the municipality to escape liability for the completed work contracted for, on the ground that the municipality is incapable of ratifying the contract or by its conduct estopping itself to deny liability for the stipulated price of that work.
City of Jackson v. Bank Trust Co., 112 Miss. 537; First National Bank v. Emmetsburg, 157 Iowa, 555; 3 McQuillin Municipal Corporations (2 Ed.), sec. 1357; 19 R.C.L. 1075.
The better line of reasonable authorities holds that where a municipality had the power and authority to undertake the project, it was undertaken with good faith, and the city received the benefits therefrom or failed through its own actions to receive the benefits therefrom, that the municipality should be compelled to pay.
Red Oak First National Bank v. Emmetsburg, 157 Iowa, 555, 138 N.W. 451, L.R.A. 1915A, 982; Schueler v. Kirkwood, 191 Mo. App. 575, 177 S.W. 760; Church v. Vicksburg, 50 Miss. 601; Jones Bayou v. Sillers, Clark Sillers, 129 Miss. 13.
The cases listed below are a few of the more reasonable authorities that hold that where a municipality had the power to and the authority to undertake the project, it was undertaken with good faith, and the city received the benefits therefrom, that the municipality should be compelled to pay.
Argenti v. San Francisco, 16 Cal. 255; Warren Bro. v. Boyle, 42 Cal.App. 246, 183 P. 706; McQuire v. Rapid City, 6 Dak. 346, 43 N.W. 706; National Tube Works Co. v. Chamberlain, 5 Dak. 54, 37 N.W. 761; McGovern v. Chicago, 281 Ill. 264, 118 N.E. 3; New Albany v. Iron Substructive Co., 141 Ind. 500, 40 N.E. 44; Wren v. Indianapolis, 96 Ind. 206; Sleeper v. Bullen, 6 Kan. 300; Pillager v. Hewett, 98 Minn. 265, 107 N.W. 85; Moore v. New York, 73 N.Y. 238, 29 Am. Rep. 134; Independent Paving Co. v. City of Bay St. Louis, 74 Fed. Rep. 2d 961
Counsel for appellant has been trying to go on the theory that the law is the same as to contracts made by municipalities and by boards or supervisors of counties, and that if the counties cannot be estopped from denying liability, the municipalities cannot. Of course there are several decisions that counties could not be estopped, where they made a contract that was not in strict compliance with the law. Section 246 of the Code of 1930 dealing with boards of supervisors, who govern counties, says: "All contracts made in violation of any of the provisions of law, shall be void." No such limitation is found in the chapter dealing with municipalities, which is in chapter 50 of the Code of 1930, and embraces some three hundred sections of the Code. However, even if there were, chapter 317 of the Laws of 1934, as above discussed, control in this case entirely, and are the final laws, any other laws to the contrary notwithstanding.
44 C.J. 97, sec. 2183b.
Argued orally by W.M. Lofton, for appellant, and by Allen C. Thompson, for appellee.
By chapter 317, Laws 1934, municipalities were authorized to acquire, own, and operate airports, and "to do all things and perform all acts necessary, proper or desirable to effectuate the full intent and purpose of this act." Section 2 (g). This included, of course, the power and authority to contract and pay for the proper or necessary engineering work in connection with airports.
On or about November 15, 1934, appellant municipality contracted with appellee for such engineering work upon an airport located or to be located near said municipality, and agreed to pay for said work the sum of $300. The work was done and appellee's bill therefor was presented and allowed as hereinafter mentioned.
The original contract is admitted to have been oral, whereas it should have been entered upon the minutes of the mayor and board of aldermen. Town of Ackerman v. Choctaw County, 157 Miss. 594, 598, 128 So. 757. It seems to be the settled law, however, that a municipality, in the absence of express statute to the contrary, may subsequently ratify a previously unenforceable contract, which it had the power to make, when the work has been done and the benefits thereof received. 3 McQuillan Mun. Corporations (2 Ed.), sec. 1357; 19 R.C.L., p. 1075. And see Independent Paving Co. v. City of Bay St. Louis (C.C.A.), 74 F.2d 961.
At the regular December, 1934, meeting of the mayor and board of aldermen of said town, the following order was entered "On motion the account of W.E. Mallett, Jr., for $300 for services on Magee and Sanatorium Air Port was allowed and ordered paid out of the general fund, payable when funds are available." Fifty dollars was afterwards paid, but the balance of $250 remaining unpaid, appellee, on November 5, 1936, about two years after the work was done and the order of allowance therefor was made, filed his declaration in debt against the said town, to which declaration a demurrer was interposed. The demurrer was overruled, and the town failing to make an affidavit of meritorious defense, as required by section 547, Code 1930, in such case, a final judgment was entered by the court against the town.
In view of the fact that the work had been done and an order of allowance therefor entered upon the minutes, there would be no difficulty presented in respect to the affirmance of the judgment except for the concluding sentence of the order of allowance which contains the provision above quoted that the payment is to be made when funds are available. Section 5979, Code 1930, enacts that, "No warrant shall be issued or indebtedness incurred by any county or municipality unless there is sufficient money in the particular fund from which the allowance is or must be made, to pay such warrant or indebtedness." See a recent discussion of this statute in Choctaw County v. Tennison, 161 Miss. 66, 134 So. 900. If there were no funds in the treasury to pay for this work when the contract was made, it may be that the contract could not be the subject of a subsequent ratification; but this point is not before us for decision. It is not shown that there were not sufficient funds on hand when the contract was made; and since officers are presumed to have followed the law unless the contrary expressly appear, we must assume that the funds were in hand when the contract was made, else the town would have shown to the contrary by a plea to the merits. The recital under discussion in the order must be interpreted under the present record to mean no more than that at the time of the order of allowance the funds were not in the treasury, and, such being the case, no warrant payable at once could be ordered, because of the last-quoted statute, hence the concluding provision of the order that the amount should be payable when funds are available.
And when such an order is entered, the duty of the board is to make the funds available within a reasonable time, under the ample provisions of law which are at the command of the board to produce the funds. A reasonable time was allowed by appellee before he entered suit, as we have already mentioned, and therefore the judgment must be affirmed.
Affirmed.