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Statement of the Case.

McCORMICK V. THE CITY OF NILES.

Liability of municipal corporations-To pay for publication of ordi

nances, etc.--Authority of proper officer to contract for sameSection 1536-653, Revised Statutes-Question of implied contract.

1. The liability of a municipal corporation to pay for the publication

of ordinances, resolutions and legal notices required by law to be pubiished, must rest on express contract, and not upon a

mere account for the rendition of such services. 2. Where the statute has not prescribed the person who shall

execute such a contract in behalf of a municipal corporation, it is consistent with Section 1536-653, Revised Statutes, for the council, by ordinance or resolution, to authorize the clerk thereof to execute such contract according to the directions of the council.

(No. 11085--Decided December 21, 1909.)

Error to the Circuit Court of Trumbull county.

The plaintiff in error was plaintiff in the court of common pleas, where she brought her action to recover of the city of Niles the sum of $651.71, and interest thereon, for publication of certain ordinances, resolutions, notices, etc.

In her last amended petition she avers that the city of Niles is a municipal corporation in Ohio and that "she, the plaintiff, is the publisher of The Independent, a newspaper of general circulation, published in the city of Niles, Ohio, and distributed to its subscribers and patrons once each week; that it is a publication Democratic in politics, and is the only newspaper Democratic in politics published in said city. That on or about the 8th day of September, A. D. 1904, at the request of said city, by its

Statement of the Case.

auditor and clerk of council, and approved by its city solicitor, this plaintiff began the publication in said newspaper for and on behalf of said city certain ordinances, resolutions and legal notices furnished to her by and on behalf of said city, and as were required by law to be published in two newspapers of opposite politics within said city; that during all the time since said date, she has continued to publish all such ordinances, resolutions and legal notices duly authorized by said city and so furnished her by said defendant city, in The Independent, up to and including February 16, 1906. An itemized statement of her said account is hereto attached marked 'A' and is made a part of her said petition, showing the date of publication, times published, and whether the publication was an ordinance, resolution or legal notice, the number of squares in each publication and the price charged for each publication.” She avers there is due her from the city $651.71, which it refuses to pav although requested to do so, and for that sum with interest she prays judgment.

The city answered, and admits its corporate capacity and that plaintiff is the publisher of The Independent, and that she has attached an exhibit to her petition marked "Exhibit A,” and that payment of her account has been refused, and denies each and every other allegation in the amended petition.

The case was tried to a jury on the issues thus made up, and at the close of all the evidence introduced, the court directed the jury to return a verdict for the city, which was done. The plaintiff ex

. cepted. A bill of exceptions was prepared, contain

Argument for Plaintiff in Error.

ing the evidence introduced, including ordinances, resolutions and legal notices, alleged to have been published. This bill was allowed and signed, and with a petition in error, was filed in the circuit court where the judgment of the court of common pleas was affirmed. Error is prosecuted here to reverse both judgments.

Mr. L. F. Hunter, for plaintiff in error.

We do not claim that we have a right to recover on an implied contract, but we do claim, first, that the evidence was sufficient to show an express contract, second, that the law made it the duty of the city council to publish the matter that was published by the plaintiff in error. State, ex rel., v. Council of Massillon, 2 C. C., N. S., 167; Wilson v. Cincinnati, 19 W. L. B., 10; Collins V. Hatch, 18 Ohio, 524.

It is a presumption of law that a newspaper is a paper of general circulation. Town of Baynard v. Baker, 76 la 222; Larkin v. Railway Co., 85 Ia., 492.

The acts of the clerk in having these ordinances published in this Democratic paper were known to the council as a council, and they not only ratified and approved them, but there was evidence tending to show, which should have been permitted to go to the jury upon the question whether or not there was a contract between the city of Niles and the plaintiff in error, which the court refused to permit, and that, we think, was prejudicial to the plaintiff in error. City of Wellston v. Morgan, 65 Ohio St., 219; City of Lancaster v. Miller, 58 Ohio St., 558.

Argument for Plaintiff in Error.

It is held in State v. Carter, 67 Ohio St., 422, that the clerk is an officer of the city.

The question whether The Independent is and was Democratic in politics and a paper of general circulation is purely a fact for the jury. By the ruling of the court the question of the politics of The Independent was taken from the jury.

The law is mandatory that these ordinances shall be published in two newspapers of opposite politics if there are two such papers published within the municipal corporation and the ordinances are invalid unless so published, and the fact that they have not been so published affords a perfect defense to any suit based upon them. Section 1536-634, Revised Statutes; State, ex rel., v. Council of Massillon, 2 C. C., N. S., 167; Wilson v. Cincinnati, 19 W. L. B., 10; Braman v. Elyria, 5 C. C., N. S., 391.

The municipal law requires this publication in order that the ordinance shall be valid. If the council failed to designate the papers in which publication should be made, does, such condition relieve the clerk from the duty imposed upon him to publish the ordinances as required by law, and as required by these ordinances? In re Durkin, 10 Hun, 269; In re Peugnet, 5 Hun, 434.

There was no necessity, however, in the council doing more than to impose upon the clerk the duty of publishing ordinances, resolutions, etc., according to law, as the statute requires. State, ex rel., v. Council of Massillon, 2 C. C., N. S., 167; Wilson v. Cincinnati, 19 W. L. B., 10; Collins v. Hatch, 18 Ohio, 524; Braman v. Elyria, 5 C. C., N. S., 391; Pittinger v. Wellsville, 75 Ohio St., 508; Lancaster v. Miller, 58 Ohio St., 558.

Argument for Defendant in Error.

The power of council shall be legislative and legislative only. Council can perform no judicial act. The court says in Ohio State Journal Co. v. Brown, 19 C. C., 325, that the claim of a paper to be Democratic, or known to be Democratic, is the guide in determining its politics. How else could it be determined as a fact?

Mr. G. P. Gillmer and Mr. T. H. Gillmer, for defendant in error.

The plaintiff in error finally concedes that there must be a contract alleged, and if alleged, of course it must be supported by proof in order for a recovery. Is a contract alleged in the petition? The petition states that the auditor and the clerk of council requested the publication and that that request was approved by the city solicitor. Section 1536-645 authorizes an auditor for the city and prescribed his duties, but nowhere under said act or elsewhere is the auditor clothed with the power to make contracts for the city.

Nowhere do we find that the clerk is clothed by statute or by ordinance to make contracts, hence we must infer that neither the auditor nor the clerk had authority to make contracts and that their request for publication made no contract, and that is true either with or without the approval of the city solicitor, whose whole duty seems to be in regard to contracts to see that contracts are in proper form; a contract to be binding upon a municipality must be an express one. City of Wellston v. Morgan, 65 Ohio St., 219.

The petition, then, does not state an agreement made according to law, hence is defective and demurrable.

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