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the court, between such cases and those where an act is illegal, or there is a want of power, is manifest.”

The only cases which seem to be in conflict with this long array of authorities, are the San Fran, isro Gas Co. vs. City of San Francisco, 9 Cal., 453; De l'oss vs. City of Richmonl, 18 Grattan, 338; and Alleghany City vs. McClerkı, 14 Penn. St., 82. In the first of these cases it was said: “A municipal corporation may incur liabilities oherwise than by ordinance. Under some circumstances it may become liable by implication. It can not avail itself of the property or labor of a party and screen itself from responsibility under the plea that it never passed an ordinance on the subject. The implication of a promise existing in such case against individuals extends equally to corporations.” But this case and the case of Argenti vs. San Francisco, 16 Cal., 255, based thereon, were expressly overruled in the subsequent case of Zottman vs. San Francisco, 20 Cal., 96, Cope, J., who delivered the opinion in Argenti vs. San Francisco, expressing himself as convinced of the error of the reasoning upon which his conclusions were arrived at. “The error," he says, "arose from paying too little attention to the restrictive provisions of the charter. * * The fact that the city has received a benefit, is not sufficient to create a liability on her part; for no responsibility can result as a matter of implication, where the law itself negatives the idea of its existence. It seems to be settled, that where a charter of incorporation prescribes the mode in which the contracts of the corporation are to be made, such mode must be strictly pursued or the corporation will not be bound. Individual members of a corporation have no authority to bind the corporate body, nor can a corporate engagement be implied from conduct or declarations unauthorized by the corporation or inconsistent with the charter. Corporations can not be bound except by corporate acts; and it is only by such acts, done either by the corporation as a body, or by its authorized agents, that any implication can be made, binding it in law; and no act contravening the provisions of the charter can be considered valid as a corporate act. There is no doubt of the application of this doctrine, and in the absence of a contract deriving its validity from the charter, the conclusion that the city is not liable seems to me irresistible. The rule that corporations must act in the prescribed mode applies with peculiar force to a corporation organized for a public purpose."

The case of De Voss vs. City of Richmond, was this: It was the

practice, upon every transfer of the bonds of the City of Richmond, to surrender the bond to a special officer appointed for the purpose, who issued a new bond in lieu of the one surrendered, and who kept a record of the transaction. During the late war, the Confederate court at Richmond undertook to confiscate a bond of the city then held by a citizen of Massachusetts, and ordered the city to issue another bond in the place of the one confiscated. The city obeyed the order of the court, but, by ordinance, directed that the fact should be expressed on the face of the new bond, which, however, was not done. The bond thus issued was afterwards transferred and surrendered by the transferree, and a new bond obtained, in which the recital that it was in lieu of a confiscated bond was also omitted. The suit against the city was upon this last bond, and the defense was that the purchaser, when he went to the proper officer to obtain the bund in lieu of the one bought, might have traced the bond back to the confiscation, and seen that it was void. The court conceded that any person dealing with a corporation in its public capacity was bound to take notice of its ordinances. But held that the city of Richmond, in the issuance and renewal of its bonds in the particular case, was not acting in its capacity as a public corporation, but was quoad hoc a private corporation. That the record kept by the officers of the surrender and re-issue of bonds was a private book, to which the public had no access, and that the purchaser was not required to take notice of its entries. The distinction thus taken between acts of a municipal corporation as a public corporation and certain other acts as to which it is to be considered only as a private corporation, was first broached in Bailey vs. Mayor of New York, 3 Hill, 531, and has been considered as sound in some subsequent cases in other States, for some purposes. But the distinction has been since commented on by the Court of Errors of New York, and held (except in a very qualified sense) not to be sound: Darlington vs. Mayor, &c., of New York, 31 New York, 198; Rosevelt vs. Draper, 23 N. Y., 325. Be this as it may, the case of De Voss vs. Richmond, being expressly based upon this distinction, it is clear that the decision is no authority where the acts, if acts of the corporation at all, are in its public capacity, and for pub

lic purposes.

The case of All-ghany City vs. McClurkan & Co., 14 Penn. St., 81, Was a suit brought upon notes issued by Alleghany City to circulate as money, under a general statute of the State of Pennsylvania, en



acted in 1828. The defense was, that the statute only applied to individuals and not to municipal corporations. But the court held that the statute did extend to cities, and authorized them to issue change bills, and that the city was liable. But the court having thus in effect, decided the case, do add, that "it is not universally true that a corporation can not bind the corporators beyond what is expressly authorized in its charter. There is a power to contract undoubtedly; and if a series of contracts has been made openly and publicly within the knowledge of the corporators, the public have a right to presume that they are within the scope of the authority granted.” This doctrine, if correct, would be based upon the principle of estoppel, like the cases of Keithsburg vs. Frick, 34 III., 421, and State vs. Union

Ill Township, 8 Ohio St., 401. It goes upon the ground that the corporation having done the acts, and having repeatedly recognized them, with full knowledge of the corporators and acquiescence on their part, the corporation is estopped. But such a doctrine can have no application to a case where the corporation undertakes to dispute not its own acts, but the acts of its officers.

And this leads us to the consideration of the ratification of the acts of its officers by the legislative department of a municipal corporation, and how far the knowledye of such acts by the members of that department can give them validity; and, also, what effect the receiving a benefit by the act has in validating it.

These points were fully considered by the Supreme Court of California in the case of Zortman vs. City of San Francisco, 20 Cal., 96. In that cise, the Common Council bad, by ordinance, authorized a contract for the erection of an iron fence around the public square in which the City Hall was situated, with a wooden basement underneath the fence. The committee entrusted with the supervision of the work changed the woolen basement into stone, and had the fence painted, no provision having been made for this purpose in the contract. The city was sued for this extra work, and the charge was sought to be sustained by proof that the work was done with the knowledge and approval of the members of the Common Council, and the city had the benefit of it. “The testimony, say the court, in their opinion, shows that during the progress of the work all the members of the Common Council must have been aware of the order to the contractors, (for the extra work,) as the work was in full view from the windows of the Council chamber, and was the subject of general conversation, and approval by the members at their various sessions and elsewhere, and no opposition to it was ever expressed ly tiny member."

Upon these facts the court say: "A municipal corporation derives all its powers from its charter, and where its charter prescribes the mode in which its contracts shall be made, no contract will bind the corporation unless made in that mode. As a necessary consequence, a contract not made in the prescribed mode can not be affirmed and ratified in disregard of that mode by any subsequent action of the corporate authorities, and a liability be thereby fastened on the corporation." “Ratification is equivalent to a previous authority ; it operates upon the contract in the same manner as though the authority to make the contract had existed originally. The power to ratify, therefore, necessarily supposes the power to make the contract in the first instance; and the power to ratify in a given mode, supposes


power to contract in the same way." See Marsh vs. Fulton County, 10 Wal., 676, to the same effect.

“We had occasion in the case of McCracken vs. City of San Francisco, 16 Cal., 619, to give to this subject great consideration, and we there held that where authority to do a particular act can only be exercised in a particular forin or mode, the ratification must follow such form or mode; and that a ratification can only be made when the principal possesses at the time the power to do the act ratified. The doctrines there laid down we regard of vital importance to the protection of the interests of municipal corporations. * Since that decision was rendered, we have had our attention called to the case of Brady vs. Mayor, &c., of New York, 16 How. Pr., 432, where these doctrines are affirmed in an opinion of great force.”

" Individual members of the Common Council were not invested by the charter with any power to improve the city property, and any directions given or contracts made by them upon the subject, had the same and no greater validity than like directions given, and like contracts made by any other resident of the city assuming to act for the corporation. And if individual members could not thus make any valid contract originally, they could not by any subsequent approval or conduct, impart validity to such contracts."

“ Nor does the fact that the corporation has received the benefit of the work, render it liable upon a quantum meruit. The corporation can only act through its chosen officers and agents, (in the mode prescribed by the charter.) If they not only may pay for work and labor actually done without a compliance with the statute requisites,


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but are legally bound to such payment, then no contract is necessary, and the restrictions in the statute are a dead letter.

If they may dispense with a contract, then and then only can they confirm an illegal and void contract, and then, also, by any acceptance of the work and a confirmation of the contract by resolution, they repeal the statute pro hac vice. . The relation which the corporation and its officers bear to the subject, the duties they owe to the public and those upon whom the burden is to fall, and the nature of the powers they possess, forbid us to concede any such force to their acts.”

“The analogy drawn from the obligation of an individual to pay for work which he accepts, although there has been no previous contract for its performance, wholly fails to reach the present case. Here, neither the officers of the corporation, nor the corporation, by any of the agencies through which they act, have any power to create the obligation to pay for the work, except in the mode which is expressly prescribed in the charter; and the l'w never implies an obligation to do that which it forbids the party to agree to do.

"To the application of the doctrine of liability upon an implied contract, where work is performed by one the benefit of which is received by another, there must not only be no restrictions imposed by the law upon the party sought to be charged against making in direct terms a similar contract to that which is implied; but the party must also be in a situation where he is entirely free to elect whether he will, or will not, accept the work, and where such election will or may influence the conduct of the other party with reference to the work itself. The mere retention and use of the benefit resulting from the work, where no such power or freedom of election exists, or where the election can not influence the conduct of the other party with reference to the work performed, does not constitute such evidence of acceptance that the law will imply therefrom a promise of payment.” (As, for example, where one puts up a house upon the land of another without request.) Citing Bartholomew vs. Jackson, 20 John, 28; Ellis vs. Hamlin, 3 Taunt, 52; Smith vs. Brudy, 17 N. Y., 173.

It is to be noted that the charters of the cities of New York and San Francisco require that public work shall be let out, after due notice, to the lowest bidder, and the cases of Zottman vs. San Francisco, 20 Cal., 96, and Braily vs. Mayor, &c., of New York, 16 How. Pr., 432, both hold that this requirement is a pre requisite to the validity of a contract. These cases hold, therefore, in addition to the principles cited above, that even the Common Council, as a legisla

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