Schurtz v. City of Grand Rapids

Kuhn, C. J. (after stating the facts). In the opinion filed by the judge of the superior court some doubt is expressed as to the propriety of the plaintiff’s filing this bill. We are of the opinion, however, that plaintiff had a right to initiate this proceeding, under the authority of McManus v. City of Petoskey, 164 Mich. 390 (129 N. W. 681), in which case this subject is fully discussed, and the cases in support of this conclusion cited. — 25 — We do not think there is any merit to the contention that Mr. Master should not have been allowed to intervene and be heard in this case. The attorneys for the city say in their brief: “If anything in the proceedings can be considered irregular, we ask that his brief and argument may be, if necessary, treated as made by counsel for the city.” In view of this statement, we shall consider that his brief is filed in behalf of the city, and thus any irregularity, if any, in the practice of allowing his intervention need not be considered. We now approach the discussion of what, we consider the important question in the case: Does the provision of Act No. 593, Local Acts of 1905, tit. 16, § 18, above quoted, render the contract between the city of Grand Rapids and Mr. Master absolutely void, or merely voidable? While the contention of defendants’ counsel is unquestionably true that the term “void” has often been used loosely and inaccurately in statutory provisions, and that “the words ‘void’ and ‘invalid,’ when used in regard to contracts not immoral nor against public policy, usually mean voidable at the option of one of the parties, or some one legally interested therein” (Doney v. Laughlin, 50 Ind. App. 38 [94 N. E. 1027]), it is equally true that in the construction of provisions aimed to prevent the evil against which the particular provision here in question is directed the great weight of authority is to the effect that the word “void” in such cases is used in its literal sense of “null or of no effect from the beginning, and not admitting of ratification.” United States v. Dietrich, 126 Fed. 671; Capron v. Hitchcock, 98 Cal. 427 (33 Pac. 431); City of Greenfield v. Black, 42 Ind. App. 645 (82 N. E. 797). Even in cases where the statute prohibiting such contracts fails to expressly declare them void, neverthe — 26 — less, if the statute imposes a penalty for the making of such a contract, there is no doubt of the general rule of law that the courts will neither enforce that contract at the suit of one party nor, if the contract has been executed, aid either party to recover back anything he may have paid thereon. In such cases: “The courts infer a legislative intent that the contracts shall be void, because to enforce the contract would practically set the statute at naught.” Laun v. Insurance Co., 131 Wis. 555 (111 N. W. 660, 9 L. R. A. [N. S.] 1204). This court, in the recent case of Ferle v. City of Lansing, 189 Mich. 501 (155 N. W. 591, L. R. A. 1917C, 1096), followed this rule, and, in the absence of express nullifying words, held that a contract made in violation of a penal prohibitive provision in the city charter was absolutely void, and affirmed a decree enjoining the city from paying for materials furnished to it under such a contract. The ground upon which the construction of the word “void” in this class of cases is distinguished from the more liberal interpretation adopted in most other instances is referred to in the case of Doney v. Laughlin, supra, one of the cases cited by the appellees in support of the contention that the word should be construed as “voidable.” The following is taken from 50 Ind. App. at page 42 (94 N. E. 1027, 1028), in the opinion: “It has also been held that: Tf it concerns the pub-lie good, it is generally to be considered void; but if it is prohibited for the purpose of securing the private rights of the parties interested, it is only voidable. Where the public interest is not concerned, it is sufficient to allow the party who may be prejudiced by an unlawful sale or contract to avoid it.' Mutual Benefit Life Ins. Co. v. Winne, 20 Mont. 20 [49 Pac. 446]. “See, also, Fletcher v. Stone, 3 Pick. (Mass.) 250; Veeder v. Trust Co., 61 Neb. 892 [6 N. W. 982]; Van — 27 — Schaack v. Robbins, 36 Iowa, 201; Denny v. McCown, 34 Or. 47 [54 Pac. 952].” This same ground of distinction was suggested by-Mr. Justice Cooley in his opinion in the case of Beecher v. Rolling Mill Co., 45 Mich. 103 (7 N. W. 695), where he said: “Mr. Justice Bayley in one case intimated that the word ‘void’ in a statute might be construed ‘voidable’ where the provision is introduced for the benefit of parties only, but not where it is introduced for public purposes and to protect those who are incapable of protecting themselves (Rex v. Hipswell, 8 B. & C. 466, 470), and though this distinction has been questioned (Rex v. St. Gregory, 2 Ad. & El. 99, 107), much good reason lies at the foundation of it. If it is apparent that an act is prohibited and declared void on grounds' of general policy,, we must suppose the legislative intent to be that it shall be void to all intents; while if the manifest intent is to give protection to determinate individuals who are sui juris, the purpose is sufficiently accomplished if they are given the liberty of avoiding it.” Inasmuch as “the charter itself is the declaration of the public policy of the city” (Ferle v. City of Lansing, supra), if the language of the act here in question clearly and unequivocally declares the contract absolutely void, we are convinced that the contention of the appellant must be sustained and the word given its literal meaning. It is claimed, however, that there is no such unqualified declaration in the act in question, but that the word “void” is qualified in two respects: (1) By adding to it the words “against the city, or any board or department thereof, including the board of education”; (2) by expressly providing a method in which a contract of the kind declared void may be lawfully entered into. The wording of this statute is unusual and peculiar, and we feel constrained to give these contentions care — 28 — ful consideration, because there is ample authority to sustain the conclusion that even in the case of statutes designed to protect the public interests or promote some public policy the rule is not invariable that the word “void” must be given its literal meaning, but the whole purview of the statute may sometimes indicate that the word is used in the broader sense of “voidable.” “Where the contract is declared ‘void’ by statute, and the statute is within the power, of the legislature to enact, there is not much room for discussion, although even then the whole purview of the statute ■may indicate that the word ‘void’ is used in the sense of ‘voidable.’ ” Laun v. Insurance Co., supra. The exact wording here involved is: “Any contract, purchase, sale, or bid made in violation of the provisions of this section shall be absolutely void and of no force or effect against the city, or any board or department thereof, including the board of education.” Were the language merely, “shall be ábsolutely void and of no force or effect,” it would be difficult to escape the conclusion that such a clear declaration of the legislative intent to render,such contracts absolutely null and ineffective from their inception must prevail, and the words be given their obvious meaning. Those words alone would have made such contracts wholly void as against the city and any board or department thereof, as well as against all other parties and for all effects and purposes. The added words clearly limit and qualify the effect of the word “void.” “Expressio unius est exclusio alterius.” Having specified against whom such contracts shall be considered absolutely void, there is no room for the contention that it was intended to declare them void as against any other party. And when a situation arises in which a contract is void as to one party and — 29 — in force as to the other, is not the exact situation of a voidable contract presented? The contract is not wholly inert and lifeless; for some purposes it has efficacy and its provisions may to some extent be enforced. We are unable, therefore, to find in this provision the legislative intent to declare such contracts wholly void for the protection of the interests of the public, who are not parties to the contract and are unable to protect themselves, but rather the purpose and intent to give the city the option of treating such contracts as void whenever it may seem to best serve the public interests to do so. In the instant case the defendant the city of' Grand Rapids makes no claim that the contract is void, evinces no desire to avoid it, but, on the contrary, asserts the validity thereof, admits that the services have been rendered and that it stands ready and willing to pay for same, and actively contests the effort of plaintiff to prevent it from so doing. No one but the city can raise the objection, and inasmuch as it has not done so, we have no ground for interference with the proposed payment of Mr. Master’s bill by the city authorities. Under this view of the situation, it becomes unnecessary to discuss the effect of that provision of the act which sets forth a method whereby such contracts may be legally entered into, or to consider the question of whether or not proper steps have been taken for a ratification of the contract in question. The decree dismissing plaintiff’s bill of complaint is affirmed, but without costs. Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.