White v. City of Seaside

McBRIDE, C. J. It sufficiently appears from the pleadings that the charter of the City of Seaside which was in force at the time of this alleged contract contains, among other things, the following provision: “The city of Seaside is not bound by any contract or in any way liable thereon, unless the same is authorized by city ordinance or resolution, and made in writing by order .of the common council, signed by the auditor and police judge on behalf of the city; except that this section shall not apply to the board of water commissioners hereinafter provided for.” It also appears that the auditor and police judge declined to sign the contract and that the council passed a resolution dispensing with Ms signature and authorizing the mayor to sign. We know of no law that authorizes a city council to dispense with a provision of a municipal charter, any more than a legislature can pass a resolution to dispense with some provision of the constitution of a state. If the auditor refused to sign the contract there certainly remained a remedy by mandamus to compel him to do so • if the contract was properly authorized, or a [337] proceeding to remove Mm from office and replace Mm with, someone who .would obey the direction of the council. Be that as it may, we are met at the very threshold-of this case with the fact that no contract such as the charter authorized was ever in fact executed, and that the plaintiff must have been aware of this when he performed the labor; and if he chose to enter upon the performance of this work in pursuance of a contract void upon its face he did so at his peril. The plaintiff’s first action was directly upon this contract. He now sues upon quantum meruit, which involves an implied contract to pay Mm the reasonable value of his services. The pleadings show that he had no enforceable contract, either express or implied. In numerous cases in this court it had been held that where a municipal charter points out a particular method in which a contract is to be executed the method so prescribed is the measure of the power: Montague-O’Reilly v. Milwaukie, 101 Or. 478 (193 Pac. 824, 199 Pac. 605); Twoohy Bros. Co. v. Ochoco Irr. Dist., June 12, 1923 (210 Pac. 873). This provision of the charter is mandatory. The language of the charter is that the city “shall not be bound by any contract or in any way liable thereon * * ,” and we but affirm that provision when we hold that plaintiff cannot recover in this form of action, or in any other form of action. This view of the case renders a discussion of the other matters urged by counsel unnecessary, and the judgment of the Circuit Court'is affirmed. Bean, J., concurs in the result. Affirmed. Brown and Band, JJ., concur.