Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1874-07-02
THE FIRE ALARM soUELcnED.
Judge Baxter Says It Can't be Put Up.
fHii Text 81 the Decision In the Man.
damIIs Case.

=
wherein the Fire Committee, Alderman
Consadine and MeSsrs. Gamewell q Co.
are plaintiffs and Mayor Kercheyal is de-
PENDANT. The following decision in the
case was rendered by Judge Baxter yes
tertlay;
The prayer of the alternative writ Is that
the defendant Ithe Mayor OF the city of
Nashyille) atfix his name to a certain con-
tract exhibited with the petition) in exc
cution thereof on behalf of the MAYOR and
City Council of Nashville, or that he sd
pear and show cause u the Contrary. etc.
The defendant appears and demurs to
TO the writ, and assigns various eauses Of
the demurrer, the sum and substance Of
which is:
First, that the so-called ordinance refer.
red to in said writ Is no ordinance. and is
void for the reason that Ii xas vetoed By
the Mayor, and was not subsequently ne.
considered and passed by the requisite
number of votes to make il valid cor
porate act
The ordinance was passed over the veto
Of the Mayor by the votes Of two-thirds OF
the members present, and voting in each
branch of the City Council, and the men,
beTs voting in each branch constituted a
quorum of said branch, but the number of
votes in favor Of the passage of the or
dinance was less than two-thirds Ofall the
members elect in each branch.
l have no doubt of the power Of two
thirds Of quorum to pass measure over
the veto Of the Mayer, or TO do ANYTHING
else that twO-thirds of all the members elect
could do, if present, unless a greater num-
Der be required by some special provision
Of the chatter, in the given case. there
fore consider the ordinance valid ordi-
nance, as much so as though it had the
consent and signature Of the Mayor or had
been passed by full vote Of all the MEM
bers elect of both branches.
The question then arises, what is the
effect of the ordinance and what rights
does it confer upon the relatOrs. Is ii a
contract with them by which they have
acquired vested rights? or is it in the ma
ture of a law imposing duties upon apublic
officer, which the REALTORS have right to
insist on.
don't think it can be considered a con-
tract binding upon either party. think
the Mayor and City Council would have
the power to repeal it at any time. think
the relatOrs have the power to refuse to GO
on with the work without subjecting them
selves to an action for breach of contract.
1t seems that the REALTORS submitted to
the Mayor and City Council, a paper con-
tanning proposition to put in readiness for
operation in the city of Nashville their
system of automatic non-inteTference fire
alarms in accordance with the following
specifications aud plans and upon the fol-
lowing specifications, to-wit:" The paper
then proceeds TO set out the plan and speci-
icatiOns of the work.
After setting forth the plan and specify
ing the work TO be done and the character
Of the worn, il next proposes to convey to
The city the right to use the apparatus du-
ring the full term of their various patents.
They next propose 10 have the entire system
in readiness for operation within four
months after the dale of the signing of the
contract herein contemplated, for the sum
IF 81, 800, TO be paid as hereinafter pro-
gided upon the following conditions to wit:
The city of Nashville shall place within
heir disposal within thirty days after
signing a contract a suitable room for the
battery station, and provide the right of
way for the various wire circuits through
he city, and upon completion Of the work
he city Of Nashville is to pay 1000 in cash,
and give its notes for the balance in three
EQUAL inStallments, payable at specified
lates.
Now, to constitute a contract, there must
De proposition on the one hand and an
acceptance on the other, and the acceptance
must embrace all the terms and condi-
ions just as they are proposed, without adj
lition or subtraction. Does the ordinance
n question amount to such an acceptance?
{ is in two sections, as follows:
Section l. Be it enacted that the sum Of
~, 500 be and the same is hereby appro-
'riated out Of any moneys in the treasury
lot otherwise appropriated, for the pur-
'Ose Of having constructed fire alarm tel
graph.
This section makes no reference what
yer TO the REALTORS or any
ther proposition. 1t simply expresses a
urpOse to appropriate sum of money TO
e used for the purpose of having con-
tructed fire alarm telegraph.
Section 2 provides that a special tax Of |
ne mill on the dollar be and the same IS |
ereby levied on the assessment for 1874, |
nd on the assessment Of each year there |
fter until the debt is paid, for the purpose |
{ defTaying the expenses incurred inbuild- |
~ said fire alarm telegraph in accordance
18th accompanying plans and specifications |
admitted by Messrs. Gamewell x Co, /
nd that the Mayor, in conjunction with /
ne Fire Committee, be and is hereby au-
lOriZed and directed to execute a contract
II tine same with Mess-s. Gamewell x Co.
Now, the Mayor and City Council Ger
Iinly did not understand themselves as ae-
spting the whole proposition as submitted
= Gamewell x Co., without qualification
+ modification. If they did, their accept
nee would have perfected the contract,
hich, being in writing could not be aided
= another writing. On the other hand, it
manifest that GameWell a Co. did not
that their proposition, thus sub
lifted, was to become the contract between
lem and the corporation, for one of the
additions of the proposition is that the
Ork is to be in readiness within four
OnthS after the date of the '.signing of
e contract herein contemplated"
ink the whole ordinance taken together, |
bon fair construction, amounts to this:
he city authorities desired TO introduce
to the city fire alarm telegraph. The
latOrs, learning that fact, submitted the
OPPOSITION exhibited, with the petition
nbracing the plan and specifications of
e apparatus they proposed to erect, to-
ther with the terms Phi conditions as TO
ivilegeS, payments, etc, to be performed |
: the corporation. The corporate au-
critics having examined the plan and
OBLIGATIONS submitted by Gamewell &
D., perhaps in connection with other
ans, decided to adopt that of Gsmewell &
D. Having decided to adopt &amewell
Co.'S plan, they then appointed the II
ayOr and Fire Committee TO negotiate
th them the best terms they cbuld get as
price and the time and mode of pay |
ant. They appropriated S22,500, because
imewell * Co. having proposed to charge
at sum, they naturally supposed it would
Iuire something like that amount to ac-
mplish the work, knowing if they could
{ it done for less, the residue of the fund
)uld be left in the treasury to be applied
other uses. The Mayor and Fire Com
ttee were directed to execute contract
IN Gamewell Il Co, because the Board /
D decided TO adopt their machine and
ere were no other parties from whom an
paratus on their plan could be obtained,
ey being the patentees of that plan. But
e Board, in passing the ordinance, never
tended to do more than to select and to
eide upon the description of apparatus
ey would adopt. They decidedfO adopt ,
Imewell q Co.'S, and directed the Mayor
d Fire Committee to negotiate and con- ,
ri with them for the work Tho Ian |