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"It is settled that railroads, hotels, etc., are so' far public in their functions that the state may control them. But as to the various kinds of private business these are of two classes : First-The class which can exist only by permission of the public-as for example, such as must obtain a special license. These must submit to the restriction of this law-i. e.: they can not exclude any one, white or colored, except on the ground of his behavior or character. Second—The class which exist independent of permission of the authorities. This includes the great mass of stores, shops, etc. Thus a man desiring to open such a business does not have to ask permission or license of the public, and the public have no concern with it, hence he could exclude part or all of the public at will. He might choose to sell only to people following a particular occupation, or of a certain age, or of a certain nationality, and the law could not compel him to abandon his whims or caprices. It follows that if he can exclude any white man or class of whites, he can exclude for color, and that the law merely says that whenever he can not exclude at will he can not exclude for color.

“Discrimination on the ground of color was punished in case of a hotel in United States v. Newcomer, 11 Philadelphia Reports, 519; in case of a theater in Joseph v. Bidwell, 28 Louisana Annual, 102; and in the case of a licensed skating rink in People of New York v. King, 42 Hun, 186. These cases belong to the first class above mentioned. While in the case of Bowlin v. Lyon, 57 Iowa, 536 (56 Am. Rep., 354), the exclusion from an unlicensed skating rink on the ground of color was held to be subject to the individual notions of the owner.

As I have been obliged to investigate the law on short notice in order to charge the jury, I may be and very likely am mistaken in the matter, and in order that the plaintiff may he able to take the case to a higher court with as little expense and trouble as possible, I shall decide the case as on demurrer to the petition and sustain the demurrer, so that he may not be forced to have the evidence transcribed; the case will thus be in the best shape for a final decision.”

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177

PUBLIC CONTRACTS.

(Superior Court of Cincinnati, General Term, 1889.)

TGANO V. ESHELBY. 1. Section 2224, Rev. Stat., as amended 78 Ohio L., 228, and section 2255, Rev. Stat.

apply to and are a limitation upon the power of the board of public works of Cincinnati to make changes in the plans and specifications for work to be done, under a contract made by the board for the construction of a sewer under the Trunk Sewer Act, 80 Ohio L., 184, after the contract has been let to the lowest

bidder according to law. 2. The limit therein imposed upon the right of the board of public works to change

or alter the contract is, that, by such change or alteration, the cost of the entire work, including changes or alterations, shall not exceed the "original contract.” The meaning of "original contract” in section 2224 is "cost under the original contract.” If a change made plainly increases the cost of the entire work beyond what the work under the original contract would have cost, then such change is beyond the power of the board to make; and is void.

This judgment was affirmed by the Supreme Court without report, April 25, 1893, Minshall and Dickman IJ. dissent.

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3. The fact that the work under the changed plans and specifications has been done,

does not estop the city from defending against a claim made under such void contract for the excess over and above the cost of the original contract.

This is a suit by a tax-payer to enjoin the misapplication of the funds of the city. Defendant is the City Comptroller. she city solicitor, by consent of parties, has taken the place of the plaintiff. The case comes into this court by reservation from special term on a bill of evidence. The payments of funds sought to be enjoined is of about seven thousand dollars, the balance due on the final estimate inade and approved by the board of public works, on the original contract and two supplementary contracts made by the board of public works with Henry McErlane, for the construction of wbat is known as the Hunt Street Sewer. The sewer was to be constructed under what is known as the trunk sewer act. The preliminary steps required by law were duly performed. The estimate of the cost of the work transmitted to council, was about $61,000.00. In the estimate, neither rubble masonry nor concrete were mentioned as vecessary, but were afterwards inserted by the engineer by slips furnished the contractors inviting bids upon them. The estimated amount of rubble masonry upon these slips was 200 yards and of coucrete, was 100 yards.

In the contract let, the city reserved full power to alter or amend the contract, and it was provided that no matter what should be omitted by order of the board from the work, the contractors should have no right to claim damages therefor.

The bids were by the unit. For the purpose of comparison of bids to determine who was the lowest bidder, the engineer reported to the board that on his estimate with McErlane's bid, the total cost of the sewer would be $46,000.50.

The original contract was made June 8, 1885. Two changes were made in the plans. One was to avoid running the sewer through the Deer Creek tunnel, which was private property. This change required sixty feet of new sewer and a large amount of additional rubble masonry. This contract was made by the board without advertising for bids, on October 19, 1885. The other was August 15, 1885, and consisted in lowering the grade of the sewer some four or five feet in Hunt street. The grade had been made to correspond with the grade of Hunt street, as it was to be improved at the same time with the construction of the sewer. Delay occurred in the improvement of Hunt street, by reason of litigation to assess damages. The street was to be filled some seventeen feet and the sewer was to be constructed above the then grade of the street. To prevent obstruction of travel, the sewer was lowered, and this led to a new contract, in which the prices per lineal foot of sewer pipe were considerably increased above the contract rate. The final estimate of the work under these contracts as done, was $91,346.32. Of this, about $16,000 was paid by assessment, and the remainder, with the exception of the $7,757.86, payment of which is now sought to be enjoined, has been paid by the city out of the trunk sewer fund. The lowering of the grade on Hunt street cost $8,125.00 in cost of lineal foot of pipe, and by the two supplementary contracts the rubble masonry and concrete instead of cost. ing $3,000.00 as they would have cost had no changes been made in the contract, cost $58,610.80.

For rubble masonry and concrete, McErlape and one other were the highest bidders at $10.00 a yard, while some of the others ranged as low as $3.00 a yard, and averaged about $5.00 a yard. On the work

Superior Court of Cincinnati.

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as actually done, McErlane's bid was the most expensive to the city of all the seven bidders save one. There is no charge of fraud made on the evidence, but these figures are necessary to show the effect of the course pursued by the board of public works with regard to this sewer. TAFT, J.

The chief ground urged by the solicitor for making the injunction herein permanent, is that these two contracts supplementary, under which some thirty-five or forty thousand dollars were added to the cost of the sewer, are illegal and void, because in violation of section 22:24, Rev. Stat., as amended April 20, 1881, 78 O. L., 258, and payment under them is in violation of section 2225.

Sectiou 2224 as amended, is as follows:

"When it becomes necessary in the opinion of the board, in the prosecution of any work hereafter ordered, to make alterations or modifications of the specifications or plans of a contract, or to omit from said work any portion of the street or territory originally ordered to be improved, such alteration, modification or omission may be made by order of the board; provided such order shall be of no effect until the price to be paid for the work under such altered or modified contract has been agreed upon in writing and signed by the contractors and some person authorized thereunto by the board; and provided further, the total cost of the work, with the addition of the price so agreed upon, shall not exceed the original contract.”

Section 2225 is as follows:

“Section 22:25. No contractor shall be allowed anything for extra work caused by any alteration or modification, unless an order is made or an agreement signed as provided in the preceding section, nor shall he, in any case, be allowed more for such alteration than the price fixed by such agreement."

It is objected by counsel for defendant to the application of these sections in this case that this sewer was built uuder the trunk sewer act passed April 18, 1883, 80 Ohio L., 184, and that these sections have 110 application to construction of sewers under that act. There is nothing in that act which expressly excludes the operation of them. There are provisions therein requiring the board of public works to assess for the cost of the construction of these sewers the abutting property owners in the same manner and to the same extent as provided by law for the assessment for other sewers. Every thing, therefore, necessary in the making of the contracts to validate an assessment for sewers under the subdivision of sewers in the general law which is not expressly changed by the trunk sewer act, would be necessary in making trunk sewers. In other words, if these sections apply to contracts for the construction of sewers at all, they apply in the case at bar. It is next objected that under the decision of the Supreme Court in the case of the City v. the Anchor White Lead Company, 44 Ohio St., 243 and in the case ví Anderson v. the City, 45 Ohio St., 407, the sectious limiting the power of the board of public works, of which the sections under discussion are two, have no relation to the construction of sewers. In the Anchor White Lead Co. case, it was held that a failure to advertise for hids on sheeting, which was afterwards contracted for with the contractor at a dollar a lineal foot, and was included in the assessment, did pol invalidate it, because the amount to be used could not be estimated. The sheeting which was used was necessary to a good job, and was proper!

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included in the assessment. This was on the authority of the case of Hastings v. Columbus 42 Ohio St., 585, where it was held that a French drain and other items not bid for were properly included in the assessments if they were necessary to make a good job. It is to be observed that as to both of these cases, neither of the sections under discussion could have had any application. In the Anchor White Lead Company case the sewer was built when section 2224 was unamended and the limit of changes was within the original estimate instead of "original contract" as now, and the total cost of the sewer, with the sheeting so contracted tor, did not exceed the estimate. And in the case of Hastings v. Columbus these sections had no application because they only apply to work contracted for by the board of public works of a city of the first grade of the first class. In the Anderson case, the Supreme Court held that the provision as to making of an estimate in the chapter on sewers was controlling where there was a provision of a similar kind in the board of public works chapter. But it is to be observed that in the chapter on sewers, there are no restrictions or provisions whatever for the manner of making contracts and constructing the work. Such restrictions must be looked for elsewhere. The proper place for them would seem to be in the chapter providing general limitations on the powers of the board whose duty it is to do the work, and there we find the sections under discussion. We are of opinion, therefore, that these sections must apply to the making of such contracts as those at bar.

It is next objected that section 2225 authorizes the making of supplementary contracts beyond the limit imposed in section 2.224. The argument is that the expression therein used "extra work caused by any alteration or modification” means additions to the original cost, and the section expressly orders payment therefor after a written contract made. It is said that the two sections could not refer to the same thing because it would convict the legislature of tautology. The history of these two sections does not justify the argument. They first appeared together as section 9 of the act creating the board of public works passed March 17, 1876—73 Ohio L., 43. In that section the word “estimate" was used instead of contract, and the connection between the exprecsion “extra work caused by any such alteration or niodification,” and the limit of the origiual estimate, convinces us that the extra work was work within the limit imposed. The division of the sections has not changed their meaning in this regard. "Extra work” means work not provided for in the original contract but within the limitation of section 2224. If this is not the meaning, it is difficult to see that section 2224 with its limit on changes of the contract wouid serve any purpose at all.

The one says the cost shall not be increased beyond a certain limit by supplementary contracts, and counsel's argument would make section 22:25 mean that the cost may be increased to any amount provided it is contracted in writing. The two sections are not tautology. Section 222+ refers to the validity of the order making the change in the improvement, and section 2:225 requires that no payment may be made except on tlie same formality. It is true the terms of section 2225 would probably be given effect inferentially from section 22:24 even if section 2.225 were not in the statutes, but such fullness of provision is not at all unusual where the legislative intent is to enforce what is regarded as a beneficial inhibition. The evil meant to be avoided here was the making over of the contract let, by supplementary changes witijout competition, so that it becomes an colti'ely different contract. The figures in the case at bar would seem to

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make this a case in point. A majority of the court is therefore of the opinion that section 2225 does not affect in any way the limitation of 2224, but is only a further carrying it out.

It is next objected that section 2224, as amended by inserting the word "contract” for “estimate,” can only apply to such contracts of the board as provide for the payment of a lump sum to the contractor. When it read "estimate" it is conceded that it applied to all contracts because that was a definite sum fixed by the engineer. As a matter of fact no large contracts are let for a lump sum. If the application of the section is only to lump sum contracts, it destroys its effect altogether, for in order to evade its provisions the board need make no lump sum contracts whatever. We can not think this to have been the intention of the legislature. There seems to be no reason why supplementary contracts under original contracts with a lump sum price are any more objectionable when they add to the cost than under contracts by the unit. What then is the meaning of the change? It seems to a majority of the court that original contract means "cost under the original contract” and that when any contract is made which will plainly increase the cost of the work beyond what it would have cost under the coutract as it was let, it is illegal and beyond the power of the board to make without first advertising for competitive bidding. It is said that this construction makes the limit indefinite. We do not think that it is unreasonably so. There are very few cases in which it can not be at once known whether a change will make the work more expensive. The changes which the board can make with the contractor are substitutions, and not additions. In this view of the statute, the amount, payment of which is sought to be enjoined here, is for work clearly within the inhibition of the statute. It is said that this is a part of the ten per cent. withheld as security of good work, and that therefore a large part of it is for work under the original contract. If money has been paid it will be presumed to have been legally paid, and as more than what is legally due has been paid, the remainder must be illegal.

It is Esally objected that the work has been done, that the city has received the benefit and is now estopped to set up such a defense, and the case of the City v. Cameron, 33 Ohio St., 336, is cited in support of this claim. It is to be observed that in that case the court limit its application to the exact facts before them. Judge Wright, says in conclusion: “All we mean to say in this case is, and it seems to be all that is necessary to the determination of the controversy, this: If the law makes a specific appropriation, which is claimed to measure the extent of corporate power, when a contract has been made which is withiu bounds and valid, it can not be invalidated by the subsequent action of the corporate authorities in concluding other contracts, the aggregate of which is in excess of the appropriation.

"And though the law requires directions to the contractor to be in writing if the contractor solicits such writings but the board dispenses with them as unnecessary and otherwise direct work to be done, and work is done as to payment for which no question exists, except the want of written authority, this is not sufficient ground of defense.” It seems to us that this statement of the Cameron case shows that it can not apply at bar. The extent of corporate power was exceeded by each supplementary contract without regard to other contracts made by the board. The limit was here on the particular contract.

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