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mal execution of the memorandum or indenture of contracts is usually committed to the mayor and recorder or other appropriate executive officer,5" but in the larger cities the power to make and execute municipal contracts is usually conferred upon special boards, bureaus, or officers having special authority and superintendence over particular corporate functions. and matters. With regard to these the fundamental rule is that such boards, bureaus, and officers are special agents only, and have no power to make contracts binding upon the municipality outside the limitation of their particular functions.1 Moreover, persons contracting with the municipality are bound to take notice of the limits of the agent's authority; 62 and a contract made by a public agent within the apparent scope of his powers does not bind his principal in the absence of actual authority. But if the contract is made by the common council as general agent of the municipality, and within the scope of the corporate powers, express or implied, the authority as

63

59 Fehler v. Gosnell, 99 Ky. 380, 35 S. W. 1125.

60 People v. Town, 1 App. Div. 127, 37 N. Y. Supp. 864; Elliott, Mun. Corp. § 252.

61 New Decatur v. Berry, 90 Ala. 432, 7 South. 838, 24 Am. St. Rep. 827; City of St. Louis v. Davidson, 102 Mo. 149, 14 S. W. 825, 22 Am. St. Rep. 764; Bonesteel v. Mayor, 22 N. Y. 162; Hudson v. Marietta, 64 Ga. 286; Starkey v. Minneapolis, 19 Minn. 203 (Gil. 166); Gates v. Hancock, 45 N. H. 528; Sullivan v. Leadville, 11 Colo. 483, 18 Pac. 736.

62 State v. Railway Co., 80 Minn. 108, 83 N. W. 32, 50 L. R. A. 656; Parsel v. Barnes, 25 Ark. 261; Kerr v. Bellefontaine, 59 Ohio St. 446, 52 N. E. 1024; Cedar Rapids Water Co. v. Cedar Rapids, 117 Iowa, 250, 90 N. W. 746. Persons contracting with a municipal corporation are bound to know whether the municipality has power to make such contract. McAleer v. Angell, 19 R. I. 688, 36 Atl. 588; Raton Waterworks Co. v. Raton, 9 N. M. 70, 49 Pac. 898.

3 Hodges v. Buffalo, 2 Denio (N. Y.) 110; Rensselaer County Sup'rs v. Bates, 17 N. Y. 242; Tippecanoe Co. v. Cox, 6 Ind. 403; Trustees of Belleview v. Hohn, 82 Ky. 1; Willoughby v. City Council, 51 S. C. 462, 29 S. E. 242; Town of Madison v. Newsome, 39 Fla. 149, 22 South. 270; Kerr v. Bellefontaine, supra; Bardsley v. Sternberg, 17 Wash. 243, 49 Pac. 499.

agent may be presumed." The municipality is not bound by the erroneous opinion or false representation of the agent with regard to his authority; " and it has been held that the presumption of his authority will not be indulged, nor will the contract be made binding from the mere silence or acquiescence of the citizens or the common council of a municipality." Ratification.

The same rules apply to ratification as to the making of contracts. No supposed ratification of an unauthorized municipal contract is binding unless such ratification is made by the municipal agency authorized to make such contract. And accordingly it has been held that where a mayor assents to a compromise of a pending suit against the city, ratifying the contract sued upon, which is entered upon the minutes of court and the suit thereupon dismissed, this formal ratification does not bind the municipality, because the mayor had no authority either to make or ratify such contract.68 The power

to ratify belongs generally to the common council, but it may be made by the particular municipal agency having power to make the original contract."9

64 This presumption results from the fact of the general authority of the council to execute all contractual powers of the municipality, not expressly withheld from it, and conferred upon special agencies. 65 Delafield v. Illinois, 2 Hill (N. Y.) 159; MINERS' DITCH CO. v. ZELLERBACH, 37 Cal. 543, 99 Am. Dec. 300; City of Baltimore v. Reynolds, 20 Md. 1, 83 Am. Dec. 535; Farnsworth v. Pawtucket, 13 R. I. 82; Overseers of Poor of Norwich v. Pharsalia, 15 N. Y. 341; Inhabitants of Congressional Tp. No. 11 v. Weir, 9 Ind. 224; Trustees of Belleview v. Hohn, 82 Ky. 1.

66 Loker v. Brookline, 13 Pick. (Mass.) 343; Allegheny City v. McClurkan, 14 Pa. 81. But see Rogers v. Burlington, 3 Wall. (U. S.) 654, 672, 18 L. Ed. 79; Bissell v. Jeffersonville, 24 How. (U. S.) 300, 16 L. Ed. 664; State v. Van Horne, 7 Ohio St. 331; Butler v. Dunham, 27 Ill. 477.

671 Dill. Mun. Corp. § 465.

68 Jackson Electric Ry., Light & Power Co. v. Adams, 79 Miss. 408, 30 South. 694; City of Tyler v. Adams (Tex.) 62 S. W. 119.

69 Delafield v. Illinois, 2 Hill (N. Y.) 159; HAGUE v. PHILA

MODE OF CONTRACTING.

101. Wherever the mode of negotiating and executing a municipal contract is plainly and specially prescribed and limited, such mode is exclusive and must be substantially pursued; else the municipality will not be bound by the contract.

Explicit restrictions and directions as to the manner of negotiating and executing municipal contracts are generally to be found in municipal charters or the statutes authorizing particular contracts. These provisions are inserted as safeguards against public extravagance and private greed. A few cases have held such instructions to be directory only,70 but the great body of the decisions concur in declaring such statutory directions as to the method and form of negotiating and executing municipal contracts to be mandatory and peremptory." The language of Chief Justice Marshall on this subject has met with general judicial approval: "The act of incorporation is to become an enabling act. It gives them all the power they possess. It enables them to contract, and when it prescribes

DELPHIA, 48 Pa. 527; MARSH v. FULTON COUNTY, 10 Wall. (U. S.) 676, 19 L. Ed. 1040; Packard v. Hayes, 94 Md. 233, 51 Atl. 32.

70 Kelley v. Mayor, 4 Hill (N. Y.) 263; Maddox v. Graham, 2 Metc. (Ky.) 56.

71 City of Goldsboro v. Moffett, 49 Fed. 213; McDONALD v. MAYOR, 68 N. Y. 23, 23 Am. Rep. 144; Zottman v. City and County of San Francisco, 20 Cal. 96, 81 Am. Dec. 96; City of Bryan v. Page, 51 Tex. 532, 32 Am. Rep. 637; Carron v. Martin, 26 N. J. Law, 594, 69 Am. Dec. 584; Littlefield v. Railroad Co., 146 Mass. 268, 15 N. E. 648; Montgomery County v. Barber, 45 Ala. 237; City of Terre Haute v. Lake, 43 Ind. 480; State v. Marion County, 21 Kan. 419; Francis v. Troy, 74 N. Y. 338; City of Baltimore v. Reynolds, 20 Md. 1, 83 Am. Dec. 535; White v. New Orleans, 15 La. Ann. 667; Terhune v. Passaic, 41 N. J. Law, 90; Moreland v. Same, 63 N. J. Law, 208, 42 Atl. 1058; FULTON v. LINCOLN, 9 Neb. 358, 2 N. W. 724; Town of Durango v. Pennington, 8 Colo. 257, 7 Pac. 14; Worthington v. Covington, 82 Ky. 265.

to them a mode of contracting they must observe that mode, or the instrument no more creates a contract than if the body had never been incorporated." 72 Modern decisions have established the law to be that contracts of municipal corporations need not be under seal unless the charter or other legislative enactment so requires; 73 and so it has been held that a municipality may be bound to a contract by ordinance or by a resolution of the common council, or even by parol agreement made through a duly authorized agency."5

LETTING OF CONTRACTS.

102. The mode of letting a municipal contract is usually prescribed by the legislature, and, as we have seen, must be pursued.

The statutes and charters, though varied in phraseology, generally contain requirements that the letting shall be upon previous advertisement, and sealed bids based on plans and specifications, and to the lowest responsible bidder.

Upon these subjects a vast amount of litigation has occurted, and the reported adjudications are numerous and not altogether consistent. The general result of these adjudica

72 Head v. Insurance Co., 2 Cranch (U. S.) 127, 2 L. Ed. 229.

73 1 Dill. Mun. Corp. § 450, citing Draper v. Springport, 104 U. S. 501, 26 L. Ed. 812; Halbut v. Forrest City, 34 Ark. 246. See, also, Sheffield School Tp. v. Andress, 56 Ind. 157; City of Gadsboro v. Moffett, 49 Fed. 213; Trustees of Alabama University v. Moody, 62 Ala. 389; Merrick v. Plank Road, 11 Iowa, 75; Clark v. Washington, 12 Wheat. (U. S.) 40, 6 L. Ed. 544; Ross v. Madison, 1 Ind. 281, 48 Am. Dec. 361; Fleckner v. President, 8 Wheat. (U. S.) 338, 5 L. Ed. 631; Over v. Greenfield, 107 Ind. 231, 5 N. E. 872.

74 FANNING v. GREGOIRE, 16 How. (U. S.) 524, 14 L. Ed. 1043; Abby v. Billups, 35 Miss. 618, 72 Am. Dec. 143.

75 Duncombe v. Ft. Dodge, 38 Iowa, 281; Reed v. Orleans, 1 Ind. App. 25, 27 N. E. 109; Clark v. Washington, 12 Wheat. (U. S.) 40, 6 L. Ed. 544. See Jackson Electric Ry., Light & Power Co. v. Adams, 79 Miss. 408, 30 South. 694.

ING.CORP.-20

76

tions upon the various points is: (1) That publication must be made substantially as prescribed, though it has been held that in case of emergency, where delay would work irreparable injury to the municipality, a bona fide contract free from fraud and favoritism, and at a reasonable price, was valid without preliminary advertisement." (2) That plans and specifications for the contract may be either published in the advertisement or referred to as on file in a particular office, or to be furnished on application.78 If published, the city is bound by the terms of the publication, and bids made thereupon are valid. So, also, of copy furnished on application." If referred to as on file, they must be filed within a reasonable time before closing of bids, so as to allow reasonable time for examination, and thereby insure competition among bidders. A requirement that material be manufactured by a particular firm is invalid,s1 and, where new material is advertised for, secondhand material cannot be accepted.82 (3) That bids must remain sealed until the day specified for opening them, to the end that the municipality may have the benefit of fair

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76 McCloud v. Columbus, 54 Ohio St. 439, 44 N. E. 95; Fairbanks, Morse & Co. v. North Bend (Neb.) 94 N. W. 537; Board of Sup'rs of Leflore County v. Cannon, 81 Miss. 334, 33 South. 81; Inge v. Board, 135 Ala. 187, 33 South. 678, 93 Am. St. Rep. 20.

77 North River Electric Light & Power Co. v. New York, 48 App. Div. 14, 62 N. Y. Supp. 726.

78 Bozarth v. McGilicuddy, 19 Ind. App. 26, 47 N. E. 397. See Reid v. Clay, 134 Cal. 207, 66 Pac. 262; New Castle v. Rearic, 18 Pa. Super. Ct. 350.

79 Moreland v. Passaic, 63 N. J. Law, 208, 42 Atl. 1058.

80 Smith v. Syracuse, 17 App. Div. 63, 44 N. Y. Supp. 852; California Imp. Co. v. Reynolds, 123 Cal. 88, 55 Pac. 802 (Necessity of competition); Rose v. Low, 85 App. Div. 461, 83 N. Y. Supp. 598; Fairbanks, Morse & Co. v. North Bend (Neb.) 94 N. W. 537; Warren v. Boston, 181 Mass. 6, 62 N. E. 951.

81 Dean v. Charlton, 23 Wis. 590, 99 Am. Dec. 205; Burgess v. Jefferson, 21 La. Ann. 143; Smith v. Improvement Co., 161 N. Y. 484, 55 N. E. 1077. Contra, Hobart v. Detroit, 17 Mich. 246, 97 Am. Dec. 185.

82 Lake Shore Foundry Co. v. Cleveland, 8 Ohio Cir. Ct. R. 671.