#### McCormick *v.*The City of Niles.

*Liability'of municipal corporations*— To *pay for publication of ordinances, etc.*— Authority *of proper officer to contract for*same— *Section 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 published, 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 onlv 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 *247auditor 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 ¿s 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 excepted. A bill of exceptions was prepared, contain*248ing 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 Ia 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.

*249It 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.

*250The 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.

*251We find it necessary first, that council authorized a contract; second, that the proper board, to make the contract, in this case is the board of public service, that they have the “necessary appropriation” and then council shall take no further action thereon; *Thornton et al.*v. *Village of Sturgis,*38 Mich., 639.

Price, J.

The only question we have to answer is — did the trial court err in directing a verdict for the defendant?

The plaintiff in error by her counsel early in the brief, states that she does not claim a right to recover on an implied contract, but does claim'that the evidence' was sufficient to show an express contract, and if that is not true, the law made it the duty of the city council to publish the matter published by plaintiff, and that “there is sufficient evidence in the case to show that the city council authorized its publications both before and after the ordinances, resolutions and notices were published.” The admission that plaintiff could not recover of the city on an implied contract is the recognition of what we have' repeatedly decided, when parties soug'ht to hold a municipal corporation liable on *quantum memdt,*or implied contract. See *City of Wellston*v. *Morgan,*65 Ohio St., 219. The amended petition is somewhat barren of averment that there was an express contract upon which a right of recovery is predicated. We have set out in the statement of this case the body of the amended petition, except the exhibit called the account attached, and we find no allegation that the publications were made in pursuance of a con*252tract for that purpose with anyone. The nearest approach to the declaration of an express contract is couched in the languáge, “at the request of said city, by its auditor and clerk, 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.” There is no averment that either of the above officers were duly authorized, and when we examine Section 1536-647, Revised Statutes, which prescribes the duties of the clerk, we find that it does not make it his duty to make contracts for such printing, and it is not alleged that there was any ordinance of .the city to that effect. The plaintiff then proceeds to allege that she continued to publish all such ordinances, resolutions and legal notices furnished her for that purpose by the city until and including February 16, 1906. While it is averred that these publications were made “at the request of said city by its auditor and clerk of council and approved by its city solicitor,” nothing more appears in the petition to constitute an express contract. These words are common in a petition on an account, and fall short of setting out an express contract. It might be that on such a petition, a court might permit evidence to be given of an express contract, but we are not deciding that question here, if the evidence in the record follows the averments of the petition and fails to make a case on express contract.

*253A careful consideration of the amended petition leads us to the conclusion that it makes nothing more .than a suit on an account. There is not an allegation that any officer of the city contracted with the plaintiff for the publication of the ordinances, etc.; and no price was named for the work —but merely that it was done at request of the city auditor and clerk of council. This amended petition was not tested by a demurrer, or by objection to the introduction of testimony under it, or perhaps the intervention of a jury might have been avoided.

In order to relieve the amended petition from objection on account of its lack of averments of contract, we are pressed with the statement, that the city or village council is *required*to publish ordinances, etc., in two newspapers of opposite politics published and of general circulation in the city. The following is part of Section 1536-619, which prescribes the duty: “All ordinances and resolutions requiring publication shall be published in two newspapers of opposite politics, published and of general circulation in such municipality, if such there be * * * .” It is claimed, therefore, that publication in that manner is mandatory, and for that reason no express contract is necessary. To this claim is added another, that Section 4366, Revised Statutes, fixes the rates per square for each publication which left mere clerical duty for the clerk to perform in calculating the cost of publication. But it must be observed that this statute fixes *maximum*rate, and no *minimum*rate. Hence it is practicable to contract for a much lower rate than the maximum and thereby *254make large savings for the city or village. The printing bills in the larger municipal corporations loom up to large proportions at times, and the legislature has not undertaken to prevent the obtaining-the publication or advertising at as low rate as may be agreed upon.

In the case at bar, it appears that the council took no action by ordinance or resolution to determine what, if any, publication should be made in plaintiff’s paper, and no ordinance or resolution is shown directing or authorizing the city clerk or anyone to contract with the plaintiff. It seems there was a contract made with the other paper in the city. At least that is conceded in the record and briefs.

If asked, as it was in argument, who can enter into such contracts on the part of the city, we can refer to Sections 1536-617 and 1536-618, Revised Statutes, as furnishing at least one mode of providing for the necessary legal printing. By virtue of the latter section, the powers of the city or village council are legislative only, and it shall perform no administrative duties whatever. “All contracts requiring the authority of council for their execution shall be entered into and conducted to performance by the board of officers having charge of the matters to which they relate, and after authority to make such contracts has been given and the necessary appropriation made, the council shall take no further action thereon.”

It would seem that the council may authorize, by resolution or ordinance, the board or department of public service to contract for the public printing, and we see no valid objection to giving *255the clerk of council the authority to make such contracts. The council appears to be the source of authority to contract, and it is the authority to make the necessary appropriations. Conferring such authority on the clerk of council would be consistent with his duties under Section 1536-653, Revised Statutes. It reads: *“In*corporations in which there is no city auditor, the clerk shall perform the duties of auditor, under the direction of the council, and such other duties pertaining to his office as may be prescribed by the council; and he shall have the charge and custody of the laws and ordinances, and the books, records, and papers of the corporation, and shall carefully keep and preserve them in his office, and shall prepare and certify all transcripts that may be required of. any record or paper in his office, and shall be entitled to receive therefor the same fees as other officers for similar services.”

The court having directed a verdict for the city, it becamé our duty to read the' evidence in the record. We have performed that duty, and find there is no evidence tending to prove that any contract was made with plaintiff below for the publications detailed in her petition.

There was doubt entertained about the politics of plaintiff’s paper. The *'News*was a Republican paper, and the plaintiff’s paper had been published as *independent*of or in politics, whatever that may be. After presentation of the first bills to council for allowance, the plaintiff was waited on by one .or more of the officials and inquiries made as to the political complexion of the paper. Although it had not changed its name, she asserted that it had *256recently become Democratic. The visitors could find but little in the files of the paper to support a conversion, and would not be satisfied with an affidavit of the publisher that the paper was of Democratic politics. They hesitated to believe that political complexion could be put on and off like an article of personal raiment. But this was not the only objection to payment, for it appears on page 90, and other pages of the record, that the principal ground of objection was the absence of authority to engage the plaintiff to make the publications. When asked about the circulation of her paper, the plaintiff declined to give the information, and there is little if anything to show that it was a paper of *general*circulation in that city.

As we read the record, the plaintiff at one time thought that an independent paper was opposite in politics to the Republican organ. When this was disputed, chameleon like, a change had come over it, and it was then Democratic. The interviews and other facts attending the presentation and discussion of these printing bills show that the plaintiff had no contract with anyone — certainly with no one authorized to represent the city.

It is to be feared, that when the oaoer acquired the prooer politics, she concluded that the law requiring oublication in two papers of opposite politics was her sole reliance and that she regarded the dutv of the city to be mandatory with reference to her newspaper, contract or no contract. In this she made a mistake, for it cannot be within the power of anyone to thus force his services upon *257the city and compel it to pay for what it never agreed to pay.

Taking the petition and the evidence, we are of opinion that the trial court correctly ruled, and that the circuit court did not err in affirming its judgment.

*Judgment affirmed.*

Crew, C. J., Summers, Davis and Shauck, JJ., concur.