L. L. Cowley and Harris & Nowlin, for denial, and, further, by averring that "all plaintiff in error. A. N. Whiteside, for de-articles received of plaintiff and mentioned fendant in error.

in plaintiff's petition were purchased by said city from said plaintiff under and by virtue of a written contract executed by plaintiff and defendant bearing date of June 27, 1903," and that same had been paid for. On September 6, 1908, plaintiff filed its reply, denying each and every allegation of said answer, except admitting the execution of the written contract, but averred "that said contract was for the purchase and sale of the electric light, ice, and power plant therein referred to and with the exceptions therein specified, and was not intended to include or cover the property and items set forth in the plaintiff's petition, such as supplies, coal, etc., not in use, or never having been in use in connection with the said light, water, and power plant, and at the time of executing and entering into the said written contract this plaintiff fully understood and believed that said written contract had nothing to do with the articles," etc. On October 12, 1908, the plaintiff filed a motion for judgment on the pleadings, which was denied. A jury being waived, said cause was tried to the court. The defendant objected to the introduction of any evidence under the petition, for the reason that the same failed to state facts sufficient to constitute a cause of action, which was overruled and exceptions saved. After the evidence was introduced on the part of the plaintiff, the defendant interposed a demurrer to the same, in part, in hæc verba: "The city further demurs, for the reason that the evidence of the plaintiff shows that the goods purchased were personal property, and the contract price was more than $500, and fails to show that it was ever submitted to a vote of the people of the city of Perry." The record then further recites: "Thereupon counsel for the respective parties argued the said demurrer to the court. Mr. Harris: The plaintiff now pending the consideration of the demurrer to the evidence offers to remit all with the exception of $500 of the amount claimed, and demands judgment for $500 and costs. Mr. Johnson: That don't help him as a matter of law. Mr. Harris: With interest from the date of the taking of the property. Mr. Whiteside: If any of it is void, it is all void. The Court: Yes; I think so. Thereupon counsel for the respective parties continued to argue the said demurrer. The Court: Demurrer sustained.

WILLIAMS, J. The plaintiff in error, as plaintiff, instituted its action in the lower court against the defendant in error, as defendant, declaring in its petition in part as follows: "That on and prior to the 1st day. of July, 1903, the said defendant was the owner of a waterworks system in said city. That on the said 1st day of July, 1903, for the purpose of conducting and supplying said waterworks system with coal for fuel, oil, etc., the said city purchased of this plaintiff a large amount of merchandise. That at said time the said city was the owner and operator of a light system for the purpose of furnishing light for the use of said city and its inhabitants. That on the said 1st day of July, 1903, the said city purchased of this plaintiff a large amount of merchandise, such as carbons, lamps, coal, oil repairs, and supplies. That at the time of the purchase of said articles it was agreed between plaintiff and defendant that the same should be listed, and a complete inventory made thereof, and the said goods inspected and delivered to said city, all of which was done by the agents of plaintiff and defendant. That a true and exact account and inventory of all the said property and merchandise so purchased by defendant from plaintiff and delivered in accordance with the agreement and arrangement between plaintiff and defendant, showing the description of each item and the price which the said defendant was to pay therefor, and which was the reasonable and actual value thereof at said time and place, is hereto attached, marked 'Exhibit A,' and made a part hereof. Plaintiff further says that said contract, agreement, and arrangement was verbal, and not in writing, but that the same was fully executed, and the property mentioned and described in said Exhibit A was then and there delivered by plaintiff to defendant, and the said defendant has used and consumed, and ever since retained and appropriated, said property to its exclusive use and benefit. Plaintiff further says that said defendant has often been requested to pay for said property, but that said payment has not been made, and defendant has positively refused and neglected to pay for the same, after a proper and formal bill and demands had been presented to said city and the officers thereof. That no part | Mr. Harris: Exception. The Court: Do you of said claim or demand has been paid. desire to stand on the demurrer, Judge HarWherefore plaintiff prays judgment against ris, and take time? Mr. Harris: I think I said defendant for the amount of said indebt- better file a motion for a new trial. I will edness in the sum of $906.21, with interest prepare it right away." The undisputed evithereon from the 1st day of July, 1903, at dence in this record on the part of the plainthe rate of 7 per cent. per annum, for the tiff in error shows that all of this property costs of this action, and all other proper re- was received under a verbal contract by one lief." On November 28, 1906, the defendant purchase, and that not only the value, but demurred to the petition, which was over- also the agreed price, exceeded $500. ruled, and exceptions saved. On December [1] Section 2 (538), art. 1, c. 14, Statutes of

pleads that the property was delivered to the city under a verbal contract. The evidence that he offers to sustain his petition tends to sustain that allegation. He seeks, however, in the face of his petition, to waive the express verbal contract and recover under quantum meruit, which is an action in assumpsit or upon an implied contract.

cities governed by the provisions of this act. [ they do not concede, that the question was shall be bodies corporate and politic, and properly raised in the lower court. He shall have power to sue and be sued, to purchase and hold real and personal property for the use of the city, to sell and convey any real or personal property, owned by the city, and make such order respecting the same as may be conducive to the best interests of the city, to make all contracts and do all other acts in relation to the property and affairs of the city, necessary to the good government of the city, and to the exercise of its corporate and administrative powers, to have and use a corporate seal, and alter the same at pleasure, and to execute such other and further powers, as are, or may be conferred by law; Provided, however, that no real estate shall be bought or sold, nor shall any personal property, where the value of the personal property, contracted for at one purchase, exceeds five hundred dollars, until the purchase or sale be authorized by a majority vote of the electors, resident of the city or village." This section was construed by the Supreme Court of Oklahoma Territory in Fire Extinguisher Manufacturing Company v. City of Perry, 8 Okl. 429, 58 Pac. 635, wherein it was held that it limited the purchase of fire apparatus to $500; that a contract made for the purchase of apparatus in excess of $500 is void, and no recovery can be had thereon.

It is insisted by counsel for the plaintiff in error that the question of such contract being void by virtue of said section, requiring all purchases of personal property in excess of $500 to be approved first by the electors of such municipality, was not raised in the lower court, but from the foregoing excerpt it would seem that the court below, as well as the parties thereto, treated this question as properly raised. Such being the case, the plaintiff in error will not be permitted to change front in this court, and insist that such question was neither properly raised nor properly before the trial court. Harris v. First National Bank of Bokchito, 21 Okl. 189, 95 Pac. 781; Queen Ins. Co. of America v. Cotney et al., 25 Okl. 125, 105 Pac. 651; Wattenbarger v. Hall, 26 Okl. 815, 110 Pac. 911; Gann v. Ball, 26 Okl. 26, 110 Pac. 1067; St. Louis & S. F. R. Co. v. Key, 28 Okl. 769, 115 Pac. 875.

Counsel for plaintiff in error in their brief says: "Counsel doubtless had in mind, at the time of interposing this demurrer, the case of Fire Extinguisher Mfg. Co. v. City of Perry, 8 Okl. 429 [58 Pac. 635], and, if the plaintiff's claim in this case was founded and proven solely upon the theory that the city was liable upon an express contract for the contract price of the property purchased, the statutory limitation upon the authority of the council to contract for personal property in excess of $500 without first submitting the question to a vote of the people of the city might be a material question in this case." Counsel thus assume, at least, if

Not only in the record, but also in the briefs, it appears to be conceded that the question as to the purchase of said personalty was not submitted to the electors of said municipality for their approval. Such being the case, if such contract for said reason was void, and no recovery could be had, either on said contract or in quantum meruit, which is an action in assumpsit, this court would do a useless thing by reversing this case and remanding it for another trial. For the defendant, after the cause was remanded, would certainly be permitted to amend its pleadings and set up that said property was delivered either under an express or implied verbal contract, in violation of section 538, supra, and that, therefore, no recovery could be had in quantum meruit. Under such conceded facts, this court should pass on the question on the theory that it was properly raised before the trial court. Kuchler et al. v. Weaver, 23 Okl. 420, 100 Pac. 915. The only objection made as to the want of authority not being pleaded in the answer was as to the mayor and certain aldermen not being authorized by the council to make the contract of purchase.

In Fire Extinguisher Mfg. Co. v. City of Perry, 8 Okl. 429, 58 Pac. 635, paragraph 3 of the syllabus is as follows: "Where a city council purchases fire apparatus at one purchase, and agrees to pay the sum of $1,100 therefor, no election having been held to authorize such purchase, the contract is void, and the city council cannot validate such illegal contract by splitting the sum into three parts of less than $500 each, and executing warrants therefor, and the payment of warrants so executed may be defeated by the city." At page 433 of 8 Okl., at page 636 of 58 Pac., the court said: "Section 538 is intended to limit the power of the city council in the purchase of personal property at one time to sums of $500 and less, unless such purchase shall be authorized by a majority vote of the electors resident of the city. If the council deem it advisable to make a purchase of personal property the value of which is in excess of $500, it becomes their duty to submit the question as to whether such purchase shall be made to a vote of the resident voters of the city, and the power to make such purchase can only be exercised when a majority vote of the electors voting on such proposition has authorized the council to make it."

[2] This language applies equally to a claim under quantum meruit. In Salt Creek Town

be created. There is a seeming hardship in refusing to pay for the bridge after the money of the company has completed it, and it is in use upon a regular laid-out public highway. But the want of legal authority to contract was known, or ought to have been known, by the company before it expended any of its money. Therefore it is at fault. Those dealing with a township must see to it that its officers have power to act. In this case nothing was concealed, and all the facts appear upon the public records. A township or other municipality can only act by the mode prescribed by law. Any other rule leaves the taxpayer at the mercy of the officers of the township and contractor, and would render all statutory provisions of limitation of power nugatory. Lewis v. Com'rs of Bourbon Co., 12 Kan. 186; 15 Am. & Eng. Encyc. of Law, 1124; Daly v. City of San Francisco [72 Cal. 154], 13 Pac. 321; Buchanan v. Litchfield, 102 U. S. 278 [26 L. Ed. 138]; Newbery v. Fox (1887) [37 Minn. 141], 33 N. W. 333 [5 Am. St. Rep. 830]; Reichard v. Warren Co., 31 Iowa, 381; | Brady v. Mayor of New York, 2 Bosw. [N. Y.] 187; Law v. People, 87 Ill. 385.”

In Allsman et al. v. Oklahoma City, 21 Okl. 142, 95 Pac. 468, 16 L. R. A. (N. S.) 511, the plaintiff sued for the recovery of the unearned portion of certain money paid to the city for a liquor license, which had failed on account of the repeal of the statute under which it was issued. In that case there was no question of the municipality acting beyond its authority or in express violation of a statutory or constitutional prohibition.

ship v. King Iron Bridge & Mfg. Co., 51 Kan. | aside by the parties, with full knowledge of 520, 33 Pac. 303, Justice Horton, in speaking all the facts, no estoppel of any kind can for the court, said: "Upon the facts disclosed in the record, and the provisions of the statute authorizing, under certain circumstances, township officers to build and pay for bridges, we think the bridge and manufacturing company cannot recover. It seems to be conceded that the company cannot recover upon its contract. The only claim made is that the township is estopped, and should be required to pay the reasonable value of the bridge. At the time of the execution of the contract, and also at the time the bridge was constructed, the public records of Salt Creek township showed that its officers had no power or authority to make any contract for the bridge or to issue any bonds. The proposition submitted to the people for the building of a bridge did not receive three-fifths of their votes. It therefore was defeated. The statutory limitation of indebtedness in the township, as prescribed in paragraph 413, was also an inhibition against the making of the contract. The township board, and, possibly, the bridge and manufacturing company, mistook the law. In any event, the township officials acted in direct conflict with the provisions of the statute prescribing their duties and limiting their powers. The records of the township were public, open to all, and the bridge and manufacturing company was not, and could not have been misled. The bridge was constructed upon a public highway with in the township, but used by the people generally. It is a well-settled rule that township or other municipal officers cannot do by indirection that which they might not do directly. State ex rel. v. Com'rs of Marion County, 21 Kan. 419. If township officers may disregard all of the statutory provisions concerning the construction of and payment for bridges, and create a liability against the people of a township by accepting bridges or other work without any power so to do, and thereby make the township liable, then the provisions of the statute defining how bridges should be built and paid for have no force whatever. Under such a rule, the township officers may at any time build and accept bridges and create liabilities against the people of a township without a vote and without limit. As the contract between the township officers and the bridge and manufacturing company is void under the statute, we do not think the other facts disclosed show the township is estopped from asserting the want of power on the part of the township officers, or from defending against any liability for the bridge. There is no innocent holder of bonds in this case, and, in fact, no innocent parties. The township officers, as well as the bridge and manufacturing company, are presumed to know the law. The statute clearly declares the conditions upon which a municipal township may obtain bridges; but if the provisions of the

In City of Oklahoma v. T. M. Richardson Lumber Company, 3 Okl. 5, 39 Pac. 386, no question of the want of authority of the municipality to purchase said lumber was involved. The provisional government for the regulation and management of the affairs of the cities and towns of the territory of Oklahoma which were established prior to the act of Congress approved May 2, 1890 (Act May 2, 1890, c. 182, 26 Stat. 81), being merely voluntary associations of the people living in such city, purchased lumber from the Jones-Richardson Lumber Company. The lumber was applied to constructing sidewalks upon the streets, and for other public improvements for the city. The unpaid account. for the lumber was assigned for value to the defendant in error, the T. M. Richardson Lumber Company. Afterwards the plaintiff in error, the city of Oklahoma City, was legally incorporated, and, coming into possession of said streets, used said lumber. It had authority then to purchase said lumber without any reference to the voters. The court properly held it was liable in quantum meruit or assumpsit; there being no statute prohibiting such purchase.

In Doyle & Cress v. School District, 18

of the contract by the common council, whether before or after the work was done, did not make it binding upon the corporation. It was further held that, where the officers of a corporation do an act in excess of the corporate power, the corporation is not bound, and, when the statute under which the corporation acts restricts its action to a particular mode, none of the agents through whom the corporation acts can bind it in any other than the mode prescribed. This is a very instructive and well-considered case. In Mayor, etc., of Baltimore v. Reynolds [20 Md. 1], 83 Am. Dec. 535, it was held that a person dealing with agents who act under a special or express authority, whether written or verbal, is bound at his peril to know what the power of the agent is, and to understand its legal effect, and, if the agent exceeds the boundary of his legal powers, the act, as far as it concerns the principal, is void. The authorities are collated and distinguished in this case, and in answer to the plea of hardship the court quotes from Lee v. Munroe, 7 Cranch, 370, 3 L. Ed. 374, where it is said: 'It is better that an individual should now and then suffer by such mistakes than to introduce a rule against an abuse of which, by improper collusions, it would be very difficult for the public to protect itself.' In fact, the rule is so universal that it seems unnecessary to cite further authority.

County, 107 U. S. 348, 2 Sup. Ct. 62, 27 L. | under the contract nor as upon a quantum Ed. 378. But an examination of those cases meruit, and that the subsequent ratification shows that the general rule announced by the court above had not been impinged upon. "The law is announced by Mr. Dillon in his work on Municipal Corporations (4th Ed.) § 457, in a manner so concise and explicit that we cannot do better than give it room in this opinion. It is as follows: "The general principle of law is settled beyond controversy that the agents, officers, or even city council of a municipal corporation cannot bind the corporation by any contract which is beyond the scope of its powers, or entirely foreign to the purposes of the corporation, or which (not being legislatively authorized) is against such public policy. This doctrine grows out of the nature of such institutions, and rests upon reasonable and solid grounds. The inhabitants are the corporators. The officers are but the public agents of the corporation. The duties and powers of the officers or public agents of the corporation are prescribed by statute or charter, which all persons not only may know, but are bound to know. The opposite doctrine would be fraught with such danger, and accompanied with such abuse, that it would soon end in the ruin of municipalities, or be legislatively overthrown. These considerations vindicate both the reasonableness and necessity of the rule that the corporation is bound only when its agents or officers, by whom it can alone act, if it acts at all, keep within the limits of the chartered authority of the corporation. The history of the workings of municipal bodies has demon- "But we are not without precedent in our strated the salutary nature of this principle, own decisions. In Arnott v. City of Spoand that it is the part of true wisdom to kane, 6 Wash. 442, 33 Pac. 1063, it was keep the corporate wings clipped down to held, in common with universal authority, the lawful standard. It results from this that, wherever a person enters into a condoctrine that contracts not authorized by the tract with an agent of a municipal corpocharter or by other legislative act-that is, ration, he must, at his peril, ascertain the not within the scope of the powers of the extent of such agent's authority, and, if corporation under any circumstances-are he fails to do so, he alone must suffer the void, and in actions thereon the corporations consequences. It was also said: "The power may successfully interpose the plea of ultra to ratify a particular contract presupposes vires, setting up as a defense its own want the power to make it in the first instance, of power under its charter or constituent and, if it is such that it would not be made statute to enter into the contract'-citing au- originally except in a certain prescribed thorities too numerous to reproduce. And if mode, where that mode is disregarded the anything were wanting to elucidate the wis- power to ratify does not exist. A contract dom of the text announced, or to show the which is invalid because not authorized by pernicious results of tolerating the practice law cannot be made valid and binding reindulged in by municipal authorities to ex- troactively by any subsequent action of the ceed their legal powers, the history of the corporate, body and a liability be thereby cities of the Pacific Coast furnishes the in- fastened upon the corporation'--citing Zottstance, where, under the stimulus of rival- man v. City and County of San Francisco, ry in the growth of cities, obligations have 20 Cal. 97 [81 Am. Dec. 96]; Pavement Co. been incurred which have bankrupted the v. Painter, 35 Cal. 704; McPherson v. Foscities and impoverished the inhabitants by ter, 43 Iowa, 48 [22 Am. Rep. 215]; City of excessive taxation rendered necessary to meet Bryan v. Page, 51 Tex. 532 [32 Am. Rep. such obligations. 637]. In Chehalis County v. Hutcheson, 21 Wash. 82, 57 Pac. 341 [75 Am. St. Rep. 818], a case where a great hardship was worked upon the appellant by the application of this rule, where the appellant was a school superintendent for Chehalis County,

"In Brady v. City of New York, 16 How. Prac. [N. Y.] 432, it was held that, where the contract under which work was done was void because entered into in violation of the charter, the contractor could not re