
    G. Sam Rogers, appellee, v. City of Omaha, appellant.
    Filed January 23, 1908.
    No. 15,371.
    1. Cities: Contracts: Validity. Where a municipal corporation enters into a contract which, under the existing law, it was authorized to make, but where the procedure laid down by the statute was not followed, the contract is not ultra vires, but irregular, and the contractor or his assignee may maintain an action to recover a remainder due upon such contract.
    2. Limitation of Actions: Acknowledgment of Debt. A warrant issued by the proper authorities of the city in consideration of a valid indebtedness against it is a written acknowledgment of such indebtedness and a promise to pay, and arrests the running of the statute of limitations.
    Appeal from the district court for Douglas county: Willis G. Sears, Judge.
    
      Affirmed.
    
    
      B. E. Burnam, I. J. Dunn and John A. Bine, for appellant.
    
      W. A. Saunders and E. G. Strode, contra.
    
   Good, O.

This is an action to recover from the city of Omaha a balance on a contract for grading a part of Mason street in that city, and is for the second time before this court for consideration. The former opinion appears in 76 Neb. 187, where a sufficient statement of the facts will be found. After the cause was reversed and remanded, a second trial was had in the district court, resulting in a judgment for the plaintiff, and from that judgment the defendant has appealed.

The second trial in the district court was upon the same issues that were presented in the first, and the same issues are now involved that were presented when the case was first before us. Several questions are argued with much earnestness in the very able and elaborate brief of the appellant, but the case must be disposed of upon the questions decided in the former opinion. The soundness of the rulings in the former opinion on both the questions that the contract was not ultra vires and that the action Avas not barred by the statute of limitations is Adgorously assailed, and we are ashed to disapprove the former holdings. In effect, Ave are ashed on this appeal to grant a rehearing on the questions disposed of in the former opinion. We have reexamined the questions presented upon the former hearing and again presented in this appeal, and have reached the same conclusions that AA'ere reached in the former opinion.

Appellant urges most strenuously that the city council did not have the power to make the contract until a petition, signed by the oAAmers of a majority of the foot frontage, had been filed asking for a change of grade, and that until such petition had been filed the action of the mayor and council in aAvarding the contract was not within their power, and the contract was therefore ultra vires. In this view we cannot concur. The poAver to change the grade of the street was vested by statute in the mayor and council. No new legislation was necessary to authorize such action. The power to change the grade is conferred by section 199, ch. 12a, Comp. St. 1903. Said section and the ones immediately following prescribe the manner of exercising this power. As long as the city was authorized to change the grade of the street under the legislation then existing, it cannot be properly said that, because the manner of exercising that poAver laid doAvn by the statute was not strictly followed, the action of the mayor and council Avas ultra vires. Properly speaking, ultra vires contracts of a municipal corporation are such as the corporation has no power to make under any circumstances or for any purpose. A contract of a municipal corporation is ultra vires in its proper sense Avhen it has no poAArer under the existing legislation under any circumstances to enter into such contract. Such a contract, of course, is AAdiolly void and gives rise to no rights. The objection to such a contract is not merely that the corporation should not have made it, but tliat it had no power to make it. But, in the case at bar, by the statute then existing the mayor and council were given the power to change the grade of the street and to award contracts for perfecting such change. Where the municipal corporation has the poAver to make the contract, but fails to folloAV the procedure laid down by the laAV for making of the contract, it cannot properly be said to be ultra vires and void, but is merely irregular. Such was the former holding, and Ave believe it to be sound, and it should be adhered to.

With reference to the statute of limitations, appellant contends that that question Avas not decided by the trial court on the first trial, and that it Avas not properly before this court upon the former hearing. HoAvever that may be, it does not in anywise affect the correctness of the holding. In the case of City of Omaha v. Clarke, 66 Neb. 33, cited in the former opinion, it Avas held that, where an award had been made by the proper city officers upon a claim for damages, the statute did not begin to run until the time of the filing of the award, and that such award Avas a record obligation in Avriting on which an action would lie for five years. In the case of Abrahams v. City of Omaha, ante, p. 271, it Avas held that a Avarrant issued by the proper authorities of the city in consideration of a valid indebtedness against it is a Avritten acknowledgment of such indebtedness and a promise to pay it, and arrests the running of the statute of limitations. So far as the statute of limitations is concerned, that case is identical Avith this one. In both actions Avarrants were issued against a special fund which had never been created, and where the city became liable upon a contract obligation. The holding in that case is conclusive in this case. The action was not barred by the statute of limitations.

It folloAvs that the judgment of the district court is right, and should be affirmed. ,

Duffie and Epperson, CC., concur.

By tbe Court: For tbe reasons given in the foregoing opinion, the judgment of the district court is

Affirmed.  