
    The City of Wellston v. Morgan.
    
      Municipalities had implied liability at common law — But no implied liability, ex contractu, in this state, since act <5f April'' 8, 1876 (73 O. L. 125) — Section 1693, Rev. Stat. — Requirement of petition in action against municipality on contract— Claim on quantum meruit not sufficient, when — Persons dealing with municipality bound to lenow statutory powers of officers.
    
    1. While there is implied municipal liability at common law, the statutes of this state provide the manner in which contracts, agreements, obligations and appropriations shall be made and entered into by municipalities, and they cannot be entered into otherwise than as provided by statute.
    2. There has been no implied municipal liability in matters ex-contractu in this state since the passage of the act of April 8, 1876 (73 O. L. 125), part of which now forms Section 1693, Revised Statutes,
    3. To state a good cause of action against a municipality in matters ex contractu the petition must declare upon a contract, agreement, obligation or appropriation made and entered into according to statute. A petition on an account merely, or quantum meruit, in such cases, is not sufficient.
    
      4, Persons dealing with officers of municipalities must ascertain for themselves and at their own peril that the provisions of the statutes applicable to the making of the contract, agreement, obligation or appropriation have been, complied with.
    (Decided November 19, 1901.)
    Error to the Circuit Court of Jackson county.
    On the sixth day of February, 1899, Thomas J. Morgan began his action against the city of Wellston, to recover for*gas supplied to that city, at its request, from February 7, 1889, to February 7, 1891; and afterward, by leave of court, filed the following amended petition, the caption, signature and verification being here omitted:
    “Plaintiff for canseof action says: — that the defendant is a city of the second class in the state of Ohio; that it was formerly, and before being organized as such city, the incorporated village of Wellston, Ohio; that on February 7, 1891, the defendant was indebted to the Consolidated Wellston Coal & Iron Company, a corporation duly organized under the laws of Ohio, in the sum of thirty-six hundred dollars ($3,600.00), upon an account for the furnishing of street lights upon the streets and public, places of said city from February 7, 1889, to February 7, 1891, á period oc twenty-four months-, which said lighting was furnished to and for defendant, and at its request a copy of the said account is hereto attached marked Exhibit ‘A’ and made part hereof.
    “That on the........day of July, 1891, plaintiff for a full and valuable consideration by him paid to said The Consolidated Wellston Coal &Iron Company, became the owner of said account and claim for the lighting of said city, and the same was on the same day duly assigned to him by said The Consolidated Wellston Coal & Iron Company, and plaintiff bath ever since been and still is tbe sole and only owner of the same.
    “That on March 24, 1892, plaintiff commenced his action in this court against the defendant to enjoin it from disturbing or interfering with the machinery, boilers, dynamos, poles, wires, lamps, fixtures, and all parts of the plant from which the light, the furnishing of which is sought to be recovered for in this action was supplied; to compel defendant to pay for said light so furnished from said February 7,1889, to February 7, 1891, being the same lighting sued for in this action, for damages and for general relief.
    “The defendant filed a demurrer to plaintiff’s petition in said cause, and upon the hearing of the same, the court of common pleas sustained it, and plaintiff not asking to further plead, judgment was rendered against him on said demurrer; plaintiff thereupon, and in due and legal time, gave notice of his intention to appeal said cause to the circuit court of said county of Jackson, and filed his bond in the sum, and conditioned as required by law for said appeal and said cause was duly taken, entered and docketed in said circuit court. Afterward the defendant filed its answer to plaintiff’s petition in said circuit court, and plaintiff filed his reply thereto, and upon the issues so made in said circuit court trial was had at the May term of said court in said county for 1896. Upon said trial said court found as a fact that defendant was indebted to plaintiff for the lighting of its said streets from said February 7, 1889, to February 7, 1891, in the sum of thirty-six hundred dollars with interest after February 7, 1891, and entered its judgment in the words and figures following, to-wit: ‘ Tt is therefore considered by the court that the plaintiff recover from the said defendant the sum of forty-seven hundred and forty-five dollars and forty cents (4,745.-40), and his costs herein expended taxed to $......, and as to the equitable relief prayed for the petition is dismissed.’.
    “The defendant prosecuted error to the Supreme Court of the state of Ohio, where, on November 3. 1898, the said judgment for $4,745.40, although said Supreme Court found that said appeal was properly perfected to said circuit court, yet because of the. showing made by the answer filed by defendant in said circuit court and the facts found by said court, said cause was reversed for the reason that the said circuit court had no jurisdiction to enter or render said judgment or try said cause, and judgment was rendered in said court for plaintiff in error, defendant below.
    “Plaintiff says that -said judgment for $4,745.40 in said circuit court was for the same matters and cause of action declared upon in this cause; that his petition herein was filed and this action was commenced February 6, 1899, and within one year after the date of the reversal of said judgment by said Supreme Court.
    “Wherefore plaintiff prays judgment against the defendant for said sum of thirty-six hundred dollars ($3,600.00) with interest since February 7, 1891.
    “Exhibit A to the Petition.
    '“The City of Wellston, Ohio,
    To . -
    “The Consolidated Wellston Coal & Iron Co., Dr. “1891, Feby. 7,
    ‘•‘To lighting streets of said city, 24 months, at $150.00 per month................ $3,-600.00.”
    
      To this amended petition the city demurred, and assigned for cause, that the amended petition does not state facts sufficient to constitute a cause, of action against the city.
    The court of common pleas sustained the. demurrer, and the plaintiff below excepted, but not desiring' to further plead, final judgment, was rendered against him.
    Upon petition in error the circuit court reversed the judgment, and thereupon the- city filed its petition iu error in this court, seeking a reversal of the circuit court, and an affirmance of the common pleas.
    
      7logan & McFarland and T. A. Jones, for plaintiff in error.
    The claim of plaintiff, if'tenable, would be a. very dangerous innovation affecting municipal obligations. It is in effect a claim that what may not be done in pursuance of statutory authoritytmay be done indirectly as in this case. If plaintiff’s, position is tenable, then statutory restrictions, such as section 2702, may be made inoperative, and municipal liabilities for public lighting, etc., created for two years or for six years’ services. Municipal indebtedness could be imposed upon a city without resolution of council, without certificate of the clerk and without money in its treasury; opportunities for fraud would tints be created, and a strict legislative requirement could be annulled and the purpose of the law defeated. The provisions of section 2702, relating to the requirement of a certificate, cover not only municipal contracts but municipal obligations. It provides that “no contract, agreement or other obligation involving the expenditure of money shall be entered into, * * * unless the clerk thereof shall first certify that the money required for the contract, agreement or other obligation or to pay the expenditure, is in the treasury to the credit of the fund from which it is to be drawn and not appropriated for any other purpose, which certificate shall be filed and immediately recorded; * * * and all contracts, agreements or other obligations, contrary to the provisions Of this section shall be void.”
    In some of the cases decided by the Supreme Court of this state and cited below, it was attempted to enforce municipal obligations as upon an implied contract, but this court has uniformly held that all of such contracts, express or implied, are absolutely void. Lancaster v. Miller, 58 Ohio St., 558; Bridge Co. v. Campbell, 60 Ohio St., 406; Comstock v. Nelsonville, 61 Ohio St., 288.
    
      J. W. Bannon and -/. M. McCillivray, for defendant in error.
    Sections 2478 and 2479, it may be conceded, authorize the council to contract for lighting for a term not to exceed ten years; there is, as must also be conceded, no statutory authority for providing funds to meet a contract for such term, and we have, if the idea of counsel for plaintiff in error is correct, the. anomalous condition of the legislature authorizing a council to make a contract for ten years, and declaring it to be void unless the certificate of funds on hand required by section 2702 is previously filed, when there is no attempt to provide means to raise such funds, and possibly no power in the legislature to grant such authority.
    . The policy of the law is to lighten as much as possible the burdens of taxation; with that end in view, the providing of large sums in advance to meet contracts for the performing of duties or furnishing ma-, teriai through a period of years is left to be met by the annual levies which are limited by a statutory maximum, fixed under section 6 of article 13 of the constitution. Where a contract extends over a number of years, payments are left to be made annually, or monthly, out of each annual assessment of taxes; and to hold that a certificate must be filed in such cases under section 2702 is to decide that no contract can he made for lighting for more than one year, notwithstanding the limitation upon council, that if it fixes a price at which light shall be furnished for ten years, and the same is accepted by the lighting company, such price cannot be changed by the council within that time. Our contention therefore is, that to make section 2702 applicable to gas and water contracts, which may be made for a term of years and are divisible into yearly payments, is to repeal the time for which such contracts may be made. In other words, there being no provision of law by which funds can be supplied in advance to meet a ten or fifteen year gas, or twenty year water contract, if section 2702 is. applicable, the contract can only be made for a year, and the stipulation that such contracts may be made for a term of years is void. The rule for which we contend is fully announced in Defiance Water Co. v. Defiance 12 O. F. D.; 90 Fed. Rep., 753; Walla Walla (City) v. Water Co., 172 U. S., 1; Clark v. Columbus, 10 Dec. (Re.) 760; 23 Bull. 289; Cincinnati v. Honningfort, 1 Dec., 563; 32 Bull., 32.
    The doctrine of implied municipal liability is by no means a late invention, nor a questionable proposition. Dillon on Municipal Corp. (3 ed.), Sec. 460; Gas Company v. San Francisco, 9 Cal., 453.. This latter case fully reviews and cites cases in 7 Creen, 96; Carter, 281; 3 S. & R., 11.7, and others, and was approved in Argenti v. San Francisco, 16 Cal., 267, and since its decision, which was prior to the appointment of Judge Field to the Supreme Court of the United States, it has been a leading ease upon the subject.
    That corporations are liable upon implied contracts, even where it is required they should be express, is too well settled for dispute. 2 Kent Com., 291; Maher v. Chicago, 38 Ill., 266; Messenger v. Buffalo, 21 N. Y., 196; Cincinnati v. Cameron, 33 Ohio St., 336. This last is a case in which the petition was upon an account, and without any allegation as to there ever having been a contract. State v. Gas Co., 37 Ohio St., 45; Cincinnati Gas Light & C. Co. v. Avondale, 43 Ohio St., 257.
    It is admitted that the village paid for all gas it received up to March 1,1879, under the contract, and now the village must pay a reasonable price for the gas used by it under that ordinance of February 13, 1879, not because of the contract, but because the village has used the gas.” Wellston (City) v. Morgan, 59 Ohio St., 147.
    Quite analogous to our claim of distinction between contracts of municipal corporations made without power, and in excess of power, Is the doctrine laid down by Read, J., in regard to the jurisdiction of courts, in Paine v. Mooreland, 15 Ohio, 435, 445.
   Btjrket, J.

It is well settled at common law, that municipalities are liable, the same as individuals, to pay, as upon an implied promise, for labor done, or materials supplied, and received, accepted and used by such municipality. The cases cited by counsel for defendant in error, as well as those cited by counsel in Buchanan Bridge Co. v. Campbell, 60 Ohio St., 406, and City of Lancaster v. Miller, 58 Ohio St., 558, fully establish this proposition.

But this case must be determined according to the provisions of our statutes, and in so far as they conflict with the common law, the statutes must prevail.

Section 1693, Revised Statutes, provides: “ * * * and no contract, agreement or obligation shall be entered into except by an ordinance or resolution of the council, nor any appropriation of money for any purpose be made except by an ordinance; every ordinance appropriating money shall contain an explicit statement of the uses and purposes for which the appropriation is made; the power or authority to make a contract, agreement or obligation to bind the corporation, or to make an appropriation, shall not be delegated; and every contract, agreement, or obligation, and every appropriation of money made contrary to the provisions of this section shall be void as against the corporation, but binding on the person or persons making it, *■ * There is an exception as to certain boards, etc., but the exception is not applicable to this case.

It will be noticed that under this section a municipality cannot enter into a contract, agreement, or obligation, except by ordinance or resolution of its council; that no appropriation of money for any purpose can be made, except by ordinance; that the power to make a contract, agreement, obligation, or appropriation, cannot be delegated;and that every contract, agreement, obligation, or appropriation, made contrary to the provisions of this section, are void as against the corporation, but binding on the other party.

It is too clear for argument, that this section fully covers and provides the manner, and the only manner, in which a municipality may enter into a contract, agreement, or obligation, and that, that manner is by ordinance or resolution of its council. Any other manner of entering into a contract, agreement, or obligation, would be “contrary to the provisions of this section,” and void as against the municipality. There can, therefore, be no implied contract, agreement, or obligation, against a municipality, and no implied liability, but all liability, ex contractu, must be express, and be entered into by ordinance or resolution of the council.

There has been no common law implied municipal liability in this state since the passage of the act of April 8, 1876, amending section 97 of the Municipal Code, 73 O. L., 125, and carried into the Revised Statutes as section 1693, because that section conflicts with the common law as to such liability, and whenever a statute is in conflict with a rule of the common law, or of equity, the statute must prevail.

Before the passage of that act, 'there were holdings by this court which seemed to recognize implied municipal liability, notably Cincinnati v. Cameron, 33 Ohio St., 336; and since that time there have been some expressions in opinions which seemed to recognize the same implied liability, but in none of those later cases were the provisions of the statute invoked by counsel, or considered by the court; and in the late cases of McCloud v. Columbus, 54 Ohio St., 439; City of Lancaster v. Miller, 58 Ohio St., 558; Buchanan Bridge Co. v. Campbell, 60 Ohio St., 406; and Comstock v. Nelsonville, 61 Ohio St., 288, full force has been given to the restrictive statutes of. the state, and implied liability denied, and tbe doctrine established that public officers can incur obligations against those for whom they act, only in pursuance of the provisions of the statutes, and that they cannot deal upon the quantum meruit, or reasonable value plan. With these holdings we are content.

A strict adherence to the provisions of the restrictive statutes of the state will be for the general good; and it devolves upon those who deal with public officers, to see for themselves that the statutes have been complied with.

It is urged that the case of Cincinnati Gas Light and Coke Company v. Avondale, 43 Ohio St., 257, recognizes implied municipal liability. But an examination of that case shows that the contract sued upon, and held void by this court, was made in 1871, before the passage of the act of April 8,1876; that the gas used was under a valid ordinance of February 13, 1879; that the village admitted its liability for the gas used under that ordinance, and offered to pay for the same, and did not invoke the restrictive statute of April 8, 1876, and that there was no question of implied municipal liability presented, considered or decided in the case.

There being no implied municipal liability in cases ex contractu, under our restrictive statutes, it follows that to state a good cause of action against a municipality in such cases, the petition must declare upon a contract, agreement, obligation, or appropriation made and entered into according to statute. A petition on an account merely, or quantum, meruit, in such cases, is not sufficient.

It follows that the court of common pleas was right in sustaining the demurrer to the petition and rendering judgment against the plaintiff below, and that the circuit court erred in reversing that judgment.

As this disposes of the case upon its merits, the other questions are not deemed worthy of report.

Judgment of the circuit court reversed, and common pleas affirmed.

Minshall, C. J., Williams, Davis and Shauck, JJ., concur.  