« ПретходнаНастави »
Cuyahoga Circuit Court.
tain obligations or doing work that he agrees to do in a certain way, the contractor certainly cannot complain if the city refuses to pay except upon his compliance with the terms of the engagement."
Since the argument there has been evolved the notion that the few constitutional limitations upon the power of the state to control at will, through legislative action, all the affairs of municipalities, in some way helps out the contention of the majority that the state is not the proprietor in the grading and construction of the streets in question. It seems to me that the effect of these exceptions is to prove the rule, if proof be needed, that the state can do what it chooses in respect to pub lic improvements anywhere within its borders, whether the territory affected be within city limits or in the rural sections of the state, provided only that it does not transcend the limitations that the people have seen fit to place upon that power by means of the constitution. That instrument will be searched in vain for any restrictions upon the power of the legislature to grade or improve highways. * But, however the moneys necessary to pay the expenses of such an improvement may be raised, it is the state that authorizes the improvement, elects the agency by which it is conducted and alone determines the source from which the money needed to pay the expenses shall come, and its power in that respect has no limitations whatever.
The prevailing opinions discuss a question which is not the power to provide that the municipal authorities shall pay to their employees going wages. As the discussion which that question has received is, in my opinion, obiter, I shall not refer to it further than to say that I dissent from the views expressed in relation thereto on the ground that the statute offends no provision of the constitution when it undertakes to provide that the city shall pay the prevailing rate of wages to those who work for it. Who denies the power of the legislature to fix the rate of compensation for the mayor, the comptroller, the police commissioner, the clerk, the attendant, and the messenger? If anyone does, I have not heard him. Why may it not then fix the rate of compensation for the engineer in charge of its heating and ventilating apparatus, its skilled mechanics or its street sweepers? Where in the constitution is to be found the provision that so discriminates between the classes into which the public service is divided as to allow the legislature to provide certainty and stability of compensation to the one and denies a similar power as to the other? My attention has not been called to such a provision, nor have I been able to find it after diligent search. * * *
* * * In the contract between the city and this relator it is agreed in terms that "the wages to be paid for a legal day's work, as herein before defined, to all classes of such laborers, workmen or mechanics upon all such public work, or upon any material to be used upon or in connection therewith, shall not be less than the prevailing rate for a day's work in the same trade or occupation in the locality within the state where such public work on, about or in connection with which labor is performed, in its final or completed form, is to be situated, erected or used. * * *
Whether, therefore, the statute was unconstitutional or not, there was nothing to prevent this relator from consenting to the incorporation of the phraseology of the statute into the contract, and when he did that and voluntarily executed the contract, as in this case, he cannot effectively plead as an excuse for the violation of his contract that inasmuch
Construction Co. v. Cleveland.
as certain of its provisions are void when embodied in a statute, they are also void when incorporated into a voluntarily executed contract.
It is not easy to appreciate the argument that admits the validity of the contract; its open violation by the relator; concedes that the provision is clear and unambiguous that declares it shall be null and void in the event of such a violation, and still contends that a recovery may be had in the face of the defense urged by every legal method, viz., that the relator cannot recover because the contract has become void by his
It is the relator's violated agreement which entitles the defendant to claim that this contract is no longer of any effect. For it must not be forgotten that this relator comes into court admitting that he has violated the contract by failing to pay the prevailing rate of wages as he agreed to do, and by his contract he agreed that the effect of his failure to do so should cause the contract to become void and of no effect.
Bartlett and Vann, JJ., concur with O'Brien and Landon, JJ., for affirmance, and Martin, J., concurs with O'Brien, J.; Parker, Ch. I.. and Haight, J., read dissenting opinions.
54 O. C. D. Với. D
ing and overhanging wall. Vanduzen v. Schraffenberger.
Title by prescription is established in the public by the use of a street for more than twenty-one years. 675 Duffy v. Norwood.
See also PARTITION.
The authority under Sec. 5114, Rev. Stat., to allow amendments in the interests of justice, is broad, and in the absence of evidence to the contrary, a reviewing court will assume that the court was justified by the evidence in permitting the amendment. Wicker v. Messinger. 425
Under Sec. 5114, Rev. Stat., a petition may be amended to conform to the facts as found by the jury in special findings, after the expiration of the three days, within which a motion for a new trial may be filed, and although no motion for a new Ib. trial was made.
A court has a right in a case coming to it on appeal to allow amendments in furtherance of justice, where the effect of such amendments is not to state a new and different cause of action from that originally brought in the lower court. Potter v. Norwood. 146
Where during the pendency of a suit in which the plaintiffs were entitled to an injunction to restrain the levying of an assessment against their property for the construction of a sewer, but wherein no temporary injunction was issued, the municipal authorities proceeded to do the work sought to be enjoined and improperly assessed parts of the costs therefor on lots of the plaintiffs, the plaintiffs have the right on appeal in the original action, by way of supplemental petition, under 5119, Rev. Stat., to set up the fact of such illegal assessment and seek to enjoin its collection.
Sections 3417, 3418, 3418a and
Section 6951, Rev. Stat., is not in
Sections 6951, 3714, 3718. 3718a,
In a suit for injuries by a vicious
Section 6494, Rev. Stat., is not,
The relator, formerly a member of
A notice of an intention to appeal,
An appeal must be invoked in the
Section 4948, Rev. Stat., commands
The courts will not let an erron-
Section 896, Rev. Stat., providing
In an action for an injunction and
An objection that the the action
See also AMENDMENTS.
Property already appropriated to
A city may waive the right to have