
    Walsh v. City of Columbus.
    1. Section 562 of the municipal code, which required the corporation to advertise for bids for the work and materials for a public improvement provided for by chapters 48, 49 and. 50, where the cost of tlic improvement exceeded $500, had no application to an improvement of a public, park belonging to the corporation.
    
      2. G. conveyed to the city of Columbus a parcel of land, within the city, in trust fora public park, for the free and common use of all the inhabitants of the city, to be known as “ Goodale Park.” One of the trusts imposed was, that the oversight, improvement and care of the park should be intrusted to a committee of three, to be appointed by the council from their own number. The council accepted said conveyance and appointed said committee, who entered into a contract with the plaintiff to supply materials therefor, and fill a depression in said park. Held, that such contract is binding on the city.
    Error to the District Court of Eranklin County.
    
      The plaintiff brought an action against the defendant, the-city of Columbus, to recover the sum of $809.85 and interest thereon, for the deposit of 5,399 loads of clay in Goodale Park, in said city, at the price of fifteen cents a load, as per contract made with the duly constituted agents of the city.
    The city denied the making of the contract, but averred,, that at the time the same was alleged to have been made,. “ there was a duly authorized committee of the defendant on the public parks of the city, of which John Walsh, a brother of the plaintiff, was chairman; that said committee neglected to advertise for bids for the performance of said labor, although the cost of said imjn’ovement exceeded $500, but that said John Walsh fraudulently and illegally entered into a verbal contract with the plaintiff, by which the latter was to supply and haul said clay at fifteen cents a load, a rate much higher than others were willing to perform the work and supply the-material for.”
    The reply denied the making of the contract by John-Walsh alone, on the part of the city, but alleged that it was-made by said committee in good faith, stipulating to pay but a fair price for said labor and materials, and not higher than the price for which others were willing to supply the same.
    On the trial, the plaintiff gave in evidence a deed of Lincoln Goodale to the city of Columbus, of a tract of forty acres of land, being the ground converted into said park, dated November 15, 1851, by which said Goodale conveyed said land to said city in fee simple upon the following trusts :
    “I. The said city of Columbus shall, within a reasonable time, lay out a public street, sixty feet wide, on the east side of said tract, to be called East Park street, and another street on the south side of said tract, sixty feet wide, to be called Bond street, as shown by said plat hereinbefore referred to.
    “ II. The said tract hereby conveyed, excepting said streets, shall be-denominated ‘ Goodale Park,’ and shall be forever kept and preserved as a. public park or pleasure ground, for the free and common use of the inhabitants of said city of Columbus, but to be under the care and (subject to said use) the exclusive direction and control of said city and their successors. '
    “III. The oversight, improvement and care of said grounds shall always be intrusted by the city council of said city to a committee of three, of their own number, excepting that during the life-time of said Lincoln Goodale, said committee shall consist of four persons, of whom said Goodale shall be one.
    “IV. The said city shall, as far as practicable, protect the birds upon said grounds, and prevent all shooting at a mark or at any game upon the-same.
    “ Y. The said city shall cause a good fence to be built about said grounds, exclusive of said streets, within one year from the date of this conveyance.
    “ YI. The said Lincoln Goodale shall have the right to designate hereafter such entrances to said grounds, from the different streets adjoining, or that may adjoin it, as he may think proper, in addition to such as may be designated by the said city. The said city shall not permit any living trees, on said grounds to be cut down or destroyed, except by the direction of said committee above mentioned, nor by the direction of said committee, except with a view to the improvement and ornament of said grounds. And in the event that the premises hereby conveyed shall be appropriated-by the said city council, or by their successors, to any other object or purpose than keeping the same as a public park or pleasure ground for the free and common use of the inhabitants of said city of Columbus, then this deed of conveyance shall become null and void, and said premises-shall revert to the heirs of said Lincoln Goodale, or to such devisees as he-may designate by his last will and testament. ”
    Testimony was offered showing that the contract was made-with the plaintiff, by the committee appointed by the council, composed of three of their number, and not by John Waish alone; and chat the compensation agreed to be paid for the-labor and material for filling up the park, was no more than the same were reasonably worth. It further appeared that, the committee did not advertise for bids for doing the work or supplying the material for filling.
    At the close of the testimony the city moved the court to-arrest the evidence from the jury, which motion the court' overruled, and the city excepted. The jury returned a verdict, for the plaintiff for the amount of his claim, which, on motion therefor, the court refused to set aside, and the city excepted.
    The city also excepted to the judgment rendered on the-verdict.
    On error to the district court, the judgment of the common pleas was reversed on the ground, as stated in the record, “ that, the contract between said Walsh and said city was void.”' The object of the prosecution of the present proceeding in error is to reverse the judgment of the district court, and to affirm the judgment of the common pleas.
    
      Lormso JEngUsh,' for plaintiff in error.
    
      Alex. W. Kruomn, city solicitor, for defendant in error.
   Boynton, <1.

The judgment of the district court, reversing the judgment of the court of common pleas, can only be justified on the ground that the improvement of a public park, within a municipal corporation, is provided for by some provision of chapter 48, 49, or 50, of the municipal code. It is claimed by the defendant that authority to make the improvement is thus derived, and consequently, that inasmuch as the cost of the improvement exceeded $500, the contract was void for failure to advertise for bids for the work and materials, as required by section 502. Our investigation has led us to the conclusion that this section has no application to the case. The laying out of public grounds, or parks, and their improvement, are provided for in chapter 27 ; •and as respects grounds purchased without limitation or •condition as to their use, or appropriated in pursuance of section 507, the provisions of that chapter, and those of chapter 20, referred to in section 399, confer the power to lay out ■ and improve such grounds, and prescribe the mode in which ■such power is to be exercised. Whenever the council shall determine, by resolution, to lay out and improve any public grounds or park, it is made the duty of the mayor to appoint, with the consent of the council, three resident freehold electors of the corporation as commissioners for that purpose, who are constituted pai’k commissioners, and invested with power to appoint a superintendent and all other necessary employés, and to prescribe their duties and fix their compensate i, ?.ubT ject to the approval of the council; and in addition the.oro, they are clothed generally with the same powers, and charged with the same duties, so far as the same are applicable, as are vested in and required to be performed by the trustees of ■cemeteries, by chapter twenty-six. § 399. Section 366 of chapter 26, confers on the trustees of cemeteries the entire management and control of all public graveyards, and burial grounds located in or belonging to the corporation, subject to its ordinances; and whenever they deem it necessary, they are required to lay out the same into lots, avenues, walks, paths, and other subdivisions. Section 367 empowers them to direct all improvements and embellishments of the grounds and lots, and to appoint, subject to the approval of the council, all necessary superintendents, employés and agents, and determine their terms of service, and the amount of their compensation. By these provisions the power to direct all improvements of a public park is vested in the park commissioners as fully as the power to improve public burial grounds of the corporation are • invested in the trustees of cemeteries, and it is nowhere made the duty of either class of public officers to advertise for, or receive bids for the work or materials that go into the improvement. That the legislature did not intend expenditures for the improvement of public grounds and parks to fall within the operation of section 562, becomes quite apparent when the foregoing provisions are considered in connection with section 501, as amended April 18, 1870. The original section provided that no improvement of any street, lane, alley, avenue, park, public grounds, market-houses or spaces, etc., of the corporation, should be ordered or directed by the council, except on the report and recommendation of the board of improvements. By the section, as amended, the words “ park,” and “ public grounds ” were-omitted, and thus the conflict between the section so amended and the provisions prescribing the duties of park commissioners, was removed, and the improvement and control of public parks left exclusively to the park commissioners, subject to such regulations as the council was authorized to make. Being, therefore, of the opinion that the power to improve public parks is unaffected by section 562, it remains to inquire whether the city is bound by the contract that the committee made with the plaintiff. That the committee making the contract on the part, of the city were not park commissioners cannot be doubted.

Sucli commissioners can only be appointed by the mayor with the consent of the council. That the mayor did not make the appointment is clearly established. But the committee was appointed by the council in fulfillment of the obligation created by, and implied in, the acceptance of the Goodale deed, by which the ground for the park was conveyed to the city. One of the duties imposed by the deed, and which the city, by its acceptance, undertook to perform, was to intrust the oversight, improvement and care of the park to a committee of three, appointed by the council from their own number.

It was in performance of this duty, that the committee was •appointed by the council, and in contracting with the plaintiff to fill up the depression in the park, the committee only employed the usual means to effect one of the objects for which it was created, and which the city hound itself to see accomplished 'by accepting the conveyance from Goodale, with the conditions it imposed. Hence, the contract .of the committee with the plaintiff was the contract of the city, as much so as a contract made for a similar purpose by park commissioners, for the improvement of a park, the ground for which was ocmt•demned under the statute, or acquired by purchase.

Judgment of district court reversed,> a/nd that of the common pleas affi/rmed.  