BLAIR et al. v. CITY OF WACO, 75 F. 800

McCORMTCK, Circuit Judge. Blair & Co., the plaintiffs in error, brought this action against the oily of Waco, the defendant in error, claiming §10,000 damages for the failure on the part of the city to comply with its contract for the sale and delivery to the plaintiff of §130,000 of the city’s 30 years’ bonds, founding the action on the following written memorandum: “December 18th, 1891. “C. C.

McCulloch, Mayor, Waco, Texas — Dear Sir; Wc have purchased of you to-day 8130,000.00 city of Waco, Texas, 5 % public improvement bonds, due July 1st, 3921, interest payable semiannually, both principal and interest payable in gold coin in New York City, at 92% cents for each dollar’s worth flat, January coupon off, to he delivered in New York Jan. 18th, 1892, which purchase is made subject to the bonds being legally and regularly issued; we to be furnished in full with all papers authorizing ihe issuance of same. “Yours, truly, [Signed| Blain & Company. “Accepted; [Signed] C. O.

McCulloch, Mayor, Waco, Texas.” The plaintiffs allege, in substance, that O. C.

McCulloch, as mayor of the city, was duly and legally authorized, empowered, and directed hy the unanimous resolution of the city council to sell the bonds, without any limitation as to the price he was to receive; that the city was in urgent need of funds to pay its contractors engaged in constructing the public improvements, to secure which the bonds were duly authorized to be issued; I hat between December 18, 1891, and January 18, 1892, the bonds so appreciated as to become worth their par value, and they are now worth the sum of $130,000; that, in fact, the bonds were duly and regularly issued, and the plaintiffs were prepared on January 15, 1892, to pay for the same, and stood ready and willing to comply with. the. stipulations of their contract, and to pay the defendant the sum of 92£ cents on each dollar’s worth of the bonds mentioned, and duly demanded delivery of the bonds according to the terms of the contract; that the city wholly refused and failed to comply with the contract, and sold the bonds to other parties at a higher price.

The city submitted a general demurrer to the plaintiffs’ petition, which was sustained by the court, and, the plaintiffs declining to amend, judgment was entered dismissing their action; and this is assigned as error. We concur in the judgment of the circuit court. Waiving any criticism of the terms of the alleged contract for the purchase and sale of the bonds, it seems clear to us that it was beyond the power of the city council to delegate to the mayor or to any agent the power to sell these bonds at his discretion as to price.

We have examined the authorities cited by counsel for the appellants (except Tiiroop on Public Officers, not accessible), and, in our opinion, they do not sustain his contention. It is clear to us that the city’s charter commits to the council exclusively the control of the city’s finances, and does not, by expressed terms or by fair implication, authorize the delegation to an agent of such discretion as was attempted to be conferred by the resolutions relied on. The judgment of the circuit court is affirmed. PABDEE, Circuit Judge, dissents.