#### The City of Cleveland *v.*The Legal News Publishing Co.

*Legal advertising*— Bates *fixed by statute*— Section *6251, General Code*— Agreement *to pay greater rate illegal*— Excess *payments recoverable*— Section *286, General Code*— Ninety-*day provision for instituting suit inapplicable, when.*

1. The provisions of Section 6251, General Code, do not permit city authorities and a publisher of a newspaper to orally agree for the payment of a greater rate for the publication of advertisements than the sum therein fixed.

2. The payment of sums greater than that fixed by that section, in pursuance of such oral contract, even though the contract and payment be made without fraud or collusion, does not preclude a recovery under Section 286, General Code, for the excess so illegally paid.

3. A city is not barred from instituting an action for the recovery of money illegally expended, by the 90-day provision ' of Section 286, General Code.

(No. 18259

Decided May 20, 1924.)

Error to the Coiirt of Appeals of Cuyahoga county,

The city of Cleveland, as successor of the city of .West Park, having annexed the latter, filed an action on June 11, 1923, against the Legal News Publishing Company to recover the sum of $1074.81 which the city of West Park had paid for advertising, covering a period from November 4, 1920, to June 6, 1922, which amount is claimed by plaintiff to be in excess of the legal rates therefor. The plaintiff’s action was based upon a report of the department of the auditor of state, made through its bureau of inspection and supervision of public *361offices, filed with the city’s director of law on January 1,1923, setting forth a finding that such amount was due to plaintiff.

The foregoing composed the statement of claim filed by the plaintiff in the municipal court. The Legal News Publishing Company demurred to this statement of claim, and assigned as grounds of demurrer that the same did not state facts sufficient to constitute a cause of action, and that the action was barred by the statute of limitations. This demurrer was overruled. Thereupon the defendant filed its amended statement of defense, in which it admitted the allegations of the plaintiff, but denied the correctness of the report made by the department. One of its defenses again pleaded the statute of limitations, claiming that the action was barred by Section 286 *et seq.,*General Code, which required it. to be commenced within 90 days from the filing of the report with the city’s law department. The chief defense to the action was made by the second and third defenses, which may be treated as one, since the allegations of both are substantially similar. These defenses stated that shortly before November 4, 1920, the defendant represented to the proper officers of the city of West Park that by reason of the advanced cost of paper and labor it could no longer print the legal advertising required by the city at the legal rates without loss; that the city solicitor, mayor, and council of the city thereupon offered to pay the defendant company a flat rate of $1 per square inch for future publications, and that said offer was orally accepted and agreed to by the defendant; that in pursuance of this oral agreement the *362defendant published such legal notices as the city requested, and charged the sum of $1 per square inch for such publications, which related almost exclusively, if not entirely, to the extension of water mains, street improvements, and bonds issued therefor; that said contract was entered into in good faith, without fraud or collusion, and for the sole purpose of procuring legal publications at the lowest rate obtainable; that the contract was fully performed by the defendant and that the city received its benefits; that the defendant was paid from time to time as the bills were presented, and that if any illegality tainted the contract the city was a party thereto, and benefited thereby, although under a mistake of law, and was estopped from claiming the recovery of any moneys paid to the defendant.

To this defense the plaintiff filed a general demurrer, which the trial court overruled. At this stage, the case was submitted on the pleadings, the court rendering judgment for the defendant which judgment was later affirmed by the Court of Appeals. The city thereupon prosecuted error to this court.

*Mr. George W. Perry,*assistant director of law, for plaintiff in error.

*Mr. P. L. A. Lieghley,*for defendant in error.

Jones, J.

The city instituted suit against the defendant to recover the sum of $1,074.81 “for advertising charges in excess of the legal rate provided by statute.” Section 6251, General Code, provides:

> *363“Publishers of newspapers may. charge and receive for the publication of advertisements # * * the following sums, except where the rate is otherwise fixed by law, to wit: For the first insertion one dollar for each square, and for each additional insertion authorized by law or the person ordering the insertion, fifty cents for each square.”

The defense rests upon an oral agreement made with the city officers and council whereby a flat rate of $1 per square inch was agreed upon by the parties and paid by the city. The above-quoted section constituted a limitation upon the parties. Under it publishers were not entitled to receive more than the sums stipulated in that statute, nor were the city authorities permitted to contract for or pay more. Any oral agreement entered into between the parties in contravention of that section was therefore illegal. The oral agreement was clearly an evasion of the law. This phase of the case is clearly governed by the first clause of the syllabus in the case of *Vindicator Printing Co.*v. *State of Ohio,*68 Ohio St. 362, 67 N. E. 733, as follows:

> “Where the number of publications of a sheriff’s election proclamation, or other public notice, is fixed by statute, there is no authority in the board of county commissioners, or other county officer, to contract for publications in excess of the number directed by statute.”

However, the chief contention of the defendant in error is based upon its defense that by reason of the advanced cost of paper and labor it could not print the legal advertising at the statutory rate *364¡without loss; that the parties mutually entered into an oral contract - to pay a rate in excess of the legal rate; and that the contract was entered into without fraud or collusion and was fully performed by the defendant and the moneys paid to it under the agreement. In affirming the trial court, the Court of Appeals sustained the sufficiency of this defense, relying upon the case of *State ex rel. Hunt*v. *Fronizer,*77 Ohio St. 7, 82 N. E. 518. The present case can be distinguished from that case. The parties to this contract were presumed to know the law, which prevented them from agreeing upon a rate for legal advertising in excess of the maximum rate provided by statute. Here the publisher is not denied compensation for the service performed, but is permitted to retain the maximum legal rate that the statute allows. The city’s petition seeks to recover only the amount charged and paid for advertising in excess of the legal rate provided by statute. In this aspect the case is distinguishable from the *Froniser case,*and is controlled by the principle indicated in *Vindicator Printing Co.*v. *State, supra.*

'Section 286, General Code, relating to the inspection and supervision of public offices, provides that, if the report sets forth-that any public money has been illegally expended, a civil action may be instituted for its recovery. This is sufficient authority for the institution of the action, but it is claimed that the city is barred from bringing the action, since it was not brought within 90 days after the filing of the report with the law department, as provided' in above section. This question was raised, not only by demurrer to the *365petition, but also by a separate defense contained in tbe answer. Tbe pleadings show that the report was filed on January 1, 1923, and that this action was instituted June 11 of the same year, being more than 90 days after the filing of the report. The section referred to requires a certified copy of the report to be filed with the city solicitor, if it relates to the expenditure of public money belonging to the city treasury. Section 286-3, General Code, provides that:

> “No cause of action * * * shall be deemed to have accrued until such report is filed with the officer or legal counsel whose duty it is to institute civil actions for the enforcement thereof, and 'all statutes of limitations otherwise applicable théreto shall not begin to run until the date of such filing.”

That section does not provide a time limitation within which the action must be brought. If such limitation exists, it must be found in Section 286, General Code, the pertinent provisions whereof are that:

> “The officer receiving such certified copy of such report **** * may, within ninety days after the receipt of such certified copy of such report, institute or cause to be instituted, and each of said officers is hereby authorized and required so to do, civil actions in the proper court ** * **for the recovery” of public moneys.

This statute does not fix a time limitation within which suit must be brought. It simply imposes a legal and directory duty upon the officer requiring brm to institute an action within the period of 90 days. This section does not forestall, nor was it *366intended to, the right of the political subdivision to bring an action after the time, provided such action is brought within the limitation named by other sections of the Code. This is clearly apparent from the succeeding provisions óf the same section, whereby the attorney general, if requested by the auditor of state, may “bring the action in all cases where the prosecuting attorney, city solicitor or mayor fails or neglects to do so within ninety days after a report of an examination has been so filed.”

Our conclusion is that the city was not barred from bringing this action because of any limitation found in Section 286. The judgment of the lower courts are reversed, and the cause remanded to the trial court for further proceedings in accordance with this opinion.

*Judgment reversed.*

Marshall, C. J., Robinson, Matthias, Day and Allen, JJ., concur.

Wanamaker, J., not participating.