CITY OF SUPERIOR v. NORTON et al., 63 F. 357

JENKINS, Circuit Judge (after stating tbe facts). Tbe contention of tbe appellees that tbe pleas interposed by tbe defendant below (appellant here) are not before us for review is not well founded. Tbe pleas were set down for argument by tbe appellees. They thereby confessed tbe facts stated, and submitted to tbe court tbe question of tbeir sufficiency in law. Farley v. Kittson, 120 U. S. 303, 7 Sup. Ct. 534. But tbe pleas are not out of tbe case, because they were overruled. Tbe appellant did not waive its right to stand upon tbe pleas by submitting to a decree pro confesso.

This appeal authorizes a review of tbe ruling below upon tbe question whether tbe facts stated in tbe pleas, or in any of them, are availing to defeat a recovery upon, or tbe enforcement of, tbe contract set forth in tbe bill. We will first consider the second plea, which goes to tbe question of the validity of tbe contract because it was not countersigned by tbe city comptroller. Tbe question is dependent wholly upon tbe provisions of tbe charter of tbe city. We must look to that charter for tbe authority of tbe city to contract, and tbe mode in which that authority is to be exercised.

Tbe charter is the source of power. It was said by Chief Justice Marshall in Head v. Insurance Co., 2 Crunch, 127, 169: ‘•The act oí incorporation is to them an enabling act It gives them all the power they possess. Jit enables them to contract; and when it prescribed to them a mode oí contracting, they must observe flint mode, or the instrument no more creates a conlract than if the body had never been incorporated.” Approved, Merrill v. Monticello, 138 U. S. 673, 687, 11 Sup. Ct. 441.

In construing charters of municipal corporations it is the policy of the law to require of such corporations a strict observance of their power. “Any ambiguity or doubt arising out of the terms used by the legislature must be resolved in favor of the public.” Minturn v. Larue, 23 How. 435, 436; The Binghamton Bridge, 3 Wall. 51, 75; Stein v. Water-Supply Co., 141 U. S. 67, 79, 11 Sup. Ct 892. And see, also, Hamilton Gas Light & Coke Co. v. Hamilton City. 146 U. S. 258, 268, 13 Sup. Ct. 90.

And while* powers expressly gran l ed or necessarily implied are not to be defeated or impaired by any overstrict cons truc tion, yet a power cannot be upheld unless it be clearly comprehended within the language of the act, or derived therefrom by necessary inplication; and the restriction imposed by che charter upon the exercise of (he power granted must be upheld in (he interest oí the public. Bo that every one dealing with a municipal corporation is bound at Ms peril to know the extent of its powers, and the manner provided for their execution.

We proceed, therefore, to the inquiry whether by the terms of the enabling act it was requisite to the validity of the contract by (lie city of Superior (bat. it should be countersigned by Us comptroller. The charter of the city is to be found in

chapter 152 of volume 2 of the Laws of Wisconsin for tin* year 18.89, published March 25, 1889. In

chapter 5 of (la* act defining the powers and duties of the city comptroller "we find (he following provision, in

section 27 of that, chapter; “He shall countersign all contracts made with the city if the necessary funds shall have been provided to pay the liability that may bo incurred against the city under such contract, and no such contract shall be valid until so countersigned.” In

chapter 10 of the act defining (he powers and duties of the board of public works (section 71) occurs the folio wing provision: “All contracts shall bo signed by the mayor and clerk unless otherwise provided by rcsolultou or ordinance.

Provided, however, that no contract shall bo executed on the part of the city until the city comptroller shall have executed tile same and math! an endorsement (hereon showing that sufficient funds are in the oily treasury, or that provision has been ¡nade to pay the liability that may accrue under such contract.” ¡Standing alone, and construed without reference to other legislation, the language oí cite provisions would seem to be plain and unambiguous, and not open ro doubt. By a familiar rule of construction, the latter provision,' being embodied in the

chapter entitled “The Board of Public Works,'’ has reference only to those coni racks of which the board of public works had cognizance and control. The former provision is found in the

chapter defining the duties of the officers of the city, is comprehensive in its terms, and upon the face of it manifestly includes all contracts made by the city which entail upon the corporation a pecuniary liability. This view—which to us seems clear by the very language of the provision—is fortified by the manifest design of the legislature, apparent- in all the provisions of the act, to inhibit the corporation from entering into any contract imposing pecuniary liability upon the city, unless and until the common council has provided the necessary means for the liquidation of such liability.

The legislature sought to impose upon this municipal corporation a restriction with reference to the incurring of liability payable out of the income of the current year, similar to that imposed by the constitution of the'state by amendment to

section 3, art. 11, adopted November 3, 1874, upon municipal corporations with respect to their bonded indebtedness, which was that before or at the time of the incurring of such indebtedness the corporation should provide for the collection of a direct annual tax sufficient to pay the interest as it matures, and a sinking fund to discharge the principal when it should fall due.

The charter evinces a consistent, harmonious, single spirit and policy governing and regulating the action of this municipal corporation, as in fact exists as to all municipal corporations of the state created under the general charter of cities, that in respect of all contracts whereby pecuniary liability is incurred, provision for payment should be made at or before the time of the execution of the contract. The considerations which led to the adoption of this policy are apparent in the history of the state prior to the adoption of the constitutional amendment.

Municipal corporations had issued bonds without respect to the value of the taxable property within the limits of the corporation, and without provision for payment of the interest or principal of the bonds at maturity. Indebtedness for municipal improvements within the limits had been incurred without regard to the sufficiency of the revenue of the current year to meet the indebtedness, and without respect to the extent of the burden cast upon the taxpayer. The practice had become a scandalous evil.

In many instances bankruptcy had resulted; the public debt of many corporations was compromised, and in one or two instances, where the load of indebtedness seemed too great to be met, or there was inability to compromise, repudiation was resorted to, to avoid the payment of just obligations.

It was to prevent in the future this unwholesome state of affairs that the policy was adopted by constitutional amendment as to bonded indebtedness, and by statute as to indebtedness payable out-of the revenue of the current year, that provision should be made for payment at or before the time of the incurring of the liability. The people of the state and their representatives in the legislature sought thus to avoid reckless extravagance, and the repudiation of just obligations.

We find, therefore, throughout this act, the manifest design that there should be prior provision for the payment of every obligation incurred, and restrictive measures-to insure such provision. The comptroller is named as the censor of the common council and of the several departments of the city government.

He is required, in anticipation of the annual tax. levy by the common council, to lay before them a detailed statement of the expenses during the past, and an estimate of the expenses for the ensuing, fiscal year, and the income of the city for that year from sources other than taxation, so that the common council may have the necessary information to provide adequately for the imcuniary necessities of the city during the coining year.

He is also to report monthly The condition of the several funds of the city and of all outstanding contracts and claims which may be payable out of each fund, lie shall examine and countersign all city orders issued for the payment of obligations of the city before (he same shall he valid. He shall not countersign such orders before the money is in the treasury to pay the same.

Section 27. We find further illustration and confirmation of this view in the provisions of

chapter 15, treating of eminent domain. The common council of the city is authorized by

section 165 to establish a board of park commissioners, and to prescribe their powers; and by

section 1(57 is granted full power to legislate with reference to public parks, provided, however, that no park should be established at the expense of (he city unless the proposition was first submitted to the vote of the electors at a.n annual city election, and adopted by a majority vote in its favor. By

chapter 6, § 34, subd. 29, the common council is empowered to acquire by gill, grant, devise, donation, purchase, or condemnation lands for public parks, and by

section 103, c. 13, the common council is vested with authority to issue bonds for the acquiring of public parks, subject to the constitutional provision that, the amount thereof, together with all other indebtedness of the city, less sinking funds on hand, shall not exceed 5 per cent, of the assessed valuation of the city at the previous assessment. The city may also, under

chapter 15, institute proceedings in court for the condemnation of lands necessary to he taken for a public park, or for other public use.

Section 133 provides that within three months after any judgment of condemnation the common council shall cause an assessment of damages and of benefits to be made chargeable upon the property supposed to he benefited thereby. Such assessment is to be confirmed by the common council, or that body may by resolution abandon the condemnation proceedings. In case of neglect for three months to order such assessment of benefits and damages, or to confirm such an assessment, and make provision for paying the excess of damages over benefits within one year after the entry of judgment of condemnation, the condemnation proceedings shall be deemed to have been abandoned. Bection 128 of that

chapter provides that if the city shall not, within one year after the entry of a judgment of condemnation, cause the benefits and damages by reason of such condemnation to be assessed, and shall not have in the proper fund available for that purpose sufficient to pay the excess of damages over benefits, the condemnation proceedings shall be deemed to have been abandoned.

The comptroller is required at the expiration of the year to furnish, upon demand, to the mayor or other proper officer of the city, a certificate showing whether there was at the end of such year in any fund of the city available for that purpose a sum sufficient to pay such excess of damages over benefits. If it shall appear that there is in any fund a sufficient sum available for that purpose, then the city may take possession of the land condemned, and an order may issue for payment to the persons entitled thereto.

The ordinance defining the powers and duties of the park commissioners (section 195, Principal Ordinances) otherwise designated as “City Ordinance No. 39, § 3,” provides that on or before the 1st day of November in each year the board of park commissioners shall file with the city clerk a detailed statement of the amount of money which will in their judgment be needed during the ensuing-year for the acquisition, care, and improvement of parks; and this estimate the city clerk shall place before the common council at the time the common council shall receive the estimates of city officers as required by

section 110 of the city charter, so that the common council may be guided thereby in making- the annual levy of taxes.

Section 110, therein referred to, requires estimates by the board of public works and board of education of the amount of money necessary for the ensuing- fiscal year in their respective departments; by the city comptroller the statement of the several amounts required by the police department, fire department, and general fund, and for purpose of paying interest for the ensuing-year on the public debt and 5 per cent, of the principal thereof.

Thus it will be seen that full provision is made by law for the ascertainment in advance of all payments necessary to be made by the city during the ensuing fiscal year, and for the levy of taxes for payment thereof, and the design is apparent that no monetary obligation shall be incurred not so provided for; and as a further restriction upon the incurring of indebtedness the charter provides that all contracts involving pecuniary liability made by the city shall be invalid unless countersigned by the city comptroller.

We observe nothing on the face of this statute which restricts the language to contracts of any particular department of the city government, or, as is claimed, to contracts made by the board of public works.

The fact that we find in the charter treating of the board of public works an express provision prohibiting the execution of such contracts by the mayor and clerk until the city comptroller shall have certified thereon that sufficient funds are in the treasury, or that provision has been made to pay the liability that may accrue, does not restrict the language of the general provision that all contracts of the city shall be void unless countersigned by the comptroller. It is contended that the term “such contracts,” used in the

section defining the duties of the city comptroller, refers to the contracts of the board of public works. We conceive this contention to be unfounded. The term manifestly refers to the contracts previously mentioned, namely, such contracts as entail pecuniary responsibility upon the city; and we think it would be a strained construction of the statute otherwise to limit it. The term “all contracts” is comprehensive, and is not to be limited unless used in a connection which clearly shows that such limitation was in tended.

It is not so used here, but is lound stated in a general provision touching’ che powers and duties of the city comptroller with respect to ¡til financial affairs of the city. Lord Coke said (Bonham’s Case, 8 Coke, 117): “The best expositor of

an act of parliament in all cases is acts of parliament themselves.'’ We should be doing violence to the language employed to restrict the provision to contracts entered into by the board of public works. This conclusion is further fortified by reference to

chapter 124 of the Laws of 1893, being “An act to revise, consolidate and ¡emend

chapter 152 of ilie Laws of 1889, entitled ‘An act to incorporate the city of ¡Superior.’ ” The legislature, in

section 27 of that act, treating of the powers and duties of the comptroller, provides as follows: “He shall examine and countersign all general and improvement bonds.” There would seem to have been some question whether the original charter required the comptroller fco execute such bonds, the improvement bonds being supposed by some to impose no liability upon the city, but to be chargeable only upon the property of individual taxpayers,—a claim subsequently proven unfounded (Fowler v. City of Superior, 85 Wis. 411, 54 N. W. 800), or to refer to bonds of the city payable at the exj)iration of a term of years.

To make the matter certain, this provision was made by way of amendment, thus emphasizing our conclusion that all contracts of every kind involving pecuniary liability upon the city of Superior were designed and intended to be countersigned by the comptroller; otherwise this anomaly would result: that countersigning is essential with respect to the bonded indebtedness and with, respect to the obligations contracted through the board of public works, and not necessary with respect to contracts made by the board of park commissioners or by the common council.

This would be in derogation of the general spirit and policy of the law and of the manifest design of the legislature to restrict the power to contract when no provision had been made for the payment of the liability incurred, and in enforcement of such restriction to require as a condition to the validity of such contract that it be countersigned by the comptroller. In an able and ingenious argument, the cons true lion contended for is sought to be enforced by construing this provision of the charter in the light of

chapter 326 of the Laws of Wisconsin for the year 1889, approved April 8 and published April 32. 1889, being “An act dividing cities into classes, and providing for their incorporation and government.” It is claimed that this act, though passed subsequently, formed a model for the charter of the city of Superior; and it is properly insisted that under a familiar principle of construction weight should be given to the cons!ruction which the legislature passing the same lias put thereon, either in other parts of the same act or In other acts relating to the same subject-matter. Milwaukee Co. v.

Elders, 45 Wis. 281, 295. It becomes necessary, therefore, to inquire whether, in the light of that act, the provisions of the act in question should receive a different construction from that which is required by the language of the act, and should be limited to contracts made by the department of public works. This general charter of cities (chapter 326) by its terms does not affect any city then incorporated, unless it be adopted in the manner therein provided, and does not apply to the city of Superior. It is, however, properly invoked by counsel for consideration as

an act in pari materia for the purposes of

interpretation. A careful comparison of the two acts leaves no room for question that the ch'arter of the city of Superior, although prior in passage and publication, was in fact almost literally, and with Chinese fidelity, largely copied from that part of the general charter of cities referring to cities of the second class. It is part of the history of the state that this

chapter 326 was prepared by a commission appointed by the legislature of 1887, and reported to and adopted by the legislature of 1889. The act divided the cities of the state, or those which should adopt the provisions of the act, into three classes: First, those containing a population of 40,000 or over; second, those containing a population of 10,000 and over and under 40,000; third, those containing a population of 2,000 and over and under 10,000. The act provides, as to cities of the first and second class, for a comptroller and á board of public works.

In cities of the first class the comptroller is not a member of that board. In cities of the second class he is a member ex officio. The charter of the city of Superior embraces those provisions of the general charter touching cities of the second class.

With respect to the duties of a comptroller in cities of the first class, the act (section 44) provides: “He shall examine all estimates of public work to be done made by the board of public works and all contracts made by them, and shall countersign the same if they are legal and if the necessary funds shall have been provided for the proposed work, and no contract shall be valid unless so countersigned.” The act provides in respect to the duties of comptrollers of cities of the second class (section 45): “He shall countersign all contracts made with the city if the necessary funds shall have been provided to pay the liabilities that may have been incurred against the city under such contract, and no such contract shall be valid unless so countersigned.” In the

chapter treating of the board of public works (chapter 11, § 93) it is provided as follows: “All contracts shall be signed by the mayor and clerk unless otherwise provided by resolution or ordinance. Provided, however, that no contract shall be executed on the part of the city until the city comptroller shall have countersigned the same and made an endorsement thereon showing that sufficient funds are in the city treasury, or that provision has been made to pay the liability that would accrue under such contract.” It will be observed that the two provisions last quoted are identical with the provisions in

section 27 and

section 71, respectively, of the charter of the city of Superior.

It is insisted that, as the same reasons and necessity supposedly existed to require the comptroller of cities of whichever class to countersign all contracts made by a city, and as the provision in respect of cities of the first class requires the comptroller to countersign only those contracts made by the board of public works, that the provision in respect to cities of the second class that “no such contract shall be valid unless so countersigned” refers necessarily to the same class of contracts mentioned in the provision with respect to cities of the first class, and that such construction should be applied under the circumstances to the provision of the charter of the city of Superior.

We cannot: give such construction to these provisions without a straining and contortion of the language of the two provisions that would be without warrant or justification. The language of the two provisions is quite different. In cities of the first class the comptroller shall examine all estimates of work to be done made by the hoard of public works, and all contracts made by them. This provision is wanting in respect: of cities of the second class, because, it is insisted, in the latter class the comptroller is a member of the board of public works, while in the former he is not.

In the former case the language is, “He shall countersign the same if they are legal.” This language is wanting in tlx; provision respecting cities of the second class. “And if llie necessary funds shall have been provided for the proposed work, and no contract shall be valid unless so countersigned.” This clearly limits the provision to the contracts of the board of public works.

But in case of cities of the second class the comptroller is to countersign “all contracts made with the city if the necessary funds shall have been provided to pay the liabilities that may have been incurred against (he city under such contracts, and no such contract shall be valid unless so countersigned.” The language here is broader and more comprehensive than in the former provision. The term “no such contract” has reference to and comprehends contracts which shall entail a, liability upon the city, whether made by the board of public works or otherwise.

We do not understand why the legislature made this distinction in respect to the duties of the comptroller in cities of the first class and in cities of the second class; why it required in the one case that all contracts should he countersigned, and in the other that only contracts made by the board of public works should be countersigned. But it is not our duty, because we cannot perceive the reason, to say that the legislature had no reason.

The power was lodged with the legislature t:o make the distinction, and it is not: within our province to give to the language employed a restricted meaning in the case of cities of the second class because the legislature failed to give the same power and impose the same restriction upon its exercise in the case of cities of the first class. We have no more right to restrict the language in the one case than we have to enlarge the scope and meaning of ihe language employed in the other case. We can only say, “Ita scripta est:,” and give to the language employed its natural meaning.

We are constrained to the conclusion that the provisions of the charter require that all contracts involving the outlay of money made by the city must be countersigned by its comptroller, and that, therefore, failing such countersigning, the contract in question was void. It is clear to us that the provisions of the law are explicit, and are not to be set aside by construction. If the condemnation. proceedings had proceeded to judgment, the appellees would have been in no better plight than they are now.

There had been no provision made for payment of the amount that might have been'awarded as the value of their land, and there was no-compulsion of law so to provide. The proceedings, therefore, by the very terms of the charter, would have fallen to the ground. Contracting with a municipal corporation, they were bound to know the extent of the powers granted, and the mode in which they should be exercised. They retain their land, and have lost nothing, unless it be in failing to receive a price which the city authorities unlawfully contracted that the city should pay.

The conclusion to which we have arrived renders it unnecessary to consider the questions presented by the other pleas. The judgment will be reversed, and the cause remanded, with instructions to sustain the second plea and to dismiss the bill.