law, but that is not enough. The law will The law will not permit him to reap a personal advantage from an official act performed in favor of himself. We think it no exception to the rule we have stated that all the contractors were not members of the board of freeholders, or that those who were members were a minority of the board. The rule would not amount to much if it could be evaded in any such way. It might almost as well not exist as to exist with such an exception. The public would reap little or no benefit from it." To the same effect is the case of McGregor v. City of Logansport, 79 Ind. 166. The following is the syllabus in the case: "It is unlawful for any officer of a city to be a party to or in any manner interested in any contract or agreement with the city whereby any liability or indebtedness may be incurred by the city; and the common council of a city cannot make a valid contract with the city judge for the use of his office as a city court-room." The following authorities are to the effect that contracts like the one at bar are against public policy, and cannot be enforced in the courts: Mayor, etc., v. Huff, 60 Ga. 221; Ft. Wayne v. Rosenthal, 75 Ind. 156; Wardell v. Railroad Co., 103 U. S. 658; Village of Dwight v. Palmer, 74 Ill. 295. For the purpose of preventing officers of a city from abusing the important trust committed to them, section 46 of the act governing cities of the second class, having over 5,000 inhabitants, was passed, which reads: "No officer of any city shall be interested, directly or indirectly, in any contract to which the corporation, or any one for its benefit, is a party; and such interest in any such contract shall avoid the obligation thereof on the part of such corporation." This section is broad and sweeping in its terms. It is obvious that a contract entered into with a city, in which any of its officers have directly or indirectly a pecuniary interest, cannot be enforced against the corporation. Wasmer being a stockholder and officer of the light and fuel company, and also a member of the city council, when the contract was entered into, brings the case clearly within the purview of the statute. Whether an action on a quantum meruit could be maintained does not arise in this case, and we express no opinion thereon. What we do hold is that an action cannot be maintained against the city on such a contract, and where the contract has not been performed, a tax-payer may maintain an action to restrain the enforcement thereof. Where, as in the case at bar, the contract has been in part executed, and the city has received benefits under it, the contract will not be canceled without the city returning the benefits it has accepted. It would be in the highest degree inequitable and unjust to permit the city to repudiate the contract and retain the benefits.

It appears from the records before us that the Grand Island Light & Fuel Company, prior to the commencement of this action in the lower court, had furnished under its contract to the defendant city electric light for five months, and for which the city audited two claims, one for $291.33 and the other for $821.81, the

payment of which is enjoined by the decree of the district court. The undisputed evidence is that said sums are the reasonable value of the light furnished the city under the contract. We think the court erred in enjoining the payment of these claims allowed by the city council. The city has claimed the benefit of the contract by appropriating the light thus furnished, and it would be inequitable to cancel the contract without restoring to the light and fuel company, not exceeding the contract price, the reasonable value of the light thus appropriated prior to the bringing of this suit. It is a familiar rule that he who seeks equity must do equity. The fact that the contract under which the light was furnished was illegal can make no difference. It does not relieve the municipality from being just. In Eiseman v. Gallagher, 24 Neb. 79, 37 N. W. Rep. 941, it was held that "where a borrower goes into a court of equity to seek relief from a usurious contract, he must tender the amount of the principal and lawful interest; and it is the duty of the court, in granting relief, to render a decree for the actual amount of the loan, with 7 per cent. interest thereon." The case of Mayor, etc., v. Huff, 60 Ga. 222, is quite in point. In that case Huff, while mayor of Macon, contracted with the city council to lease the city park for five years, and, for an annual sum paid to him, to fence, drain, and keep the same in repair for that period. An action was brought to annul the contract. While it was held void, the city was compelled to reimburse Huff for what he had expended. We quote the third point of the syllabus in that case: "Equity, however, requires every litigant who seeks her aid to do equity; and inasmuch as the defendant has expended large sums of money in fencing, levying, draining, and ornamenting the park, of which the city has received the benefit, equity will not interpose in behalf of the complainant to annul and set aside the contract, though thus illegal, unless the complainant shall first do equity, and to do equity the city must pay the defendant the money so expended, and interest thereon, and thus restore him, as far as practicable, to his statu quo, in the absence of actual fraud on his part." The same principle was fully recognized in the case of Turner v. Cruzen, (Iowa,) 30 N. W. Rep. 483. That was an action brought by a tax-payer of Adams county to cancel a contract entered into between the county and the defendant Cruzen, whereby the county purchased of him a farm for the use of the county as a poor-farm, for the agreed price of $8,800, and also to restrain the treasurer of the county from paying certain warrants issued under the contract. The purchase was unauthorized, having been made without a vote of the people. Chief Justice ADAMS, in the opinion in that case, says: "It may be that the intention in decreeing the invalidity of the contract was merely to afford a basis for enjoining the payment of the warrants issued for a part of the purchase money. If this is so, then the court proceeded upon the theory that the county could be relieved of a part of the burden of its contract while retaining the entire benefit of it. Of such a decree

the county could not, of course, complain. But such a decree cannot, in our opinion, be sustained. It appears to us to be well settled as a rule, with one exception, that, where the consideration received by a corporation under an ultra vires contract can be restored, a court of equity will not relieve the corporation, as against the contract, without providing for a restoration of the consideration." The following authorities sustain the same equitable doctrine: Lucas Co. v. Hunt, 5 Ohio St. 488; Argenti v. San Francisco, 16 Cal. 282. The decree of the district court, therefore, should have required the city to pay the two warrants issued on the claims allowed, and also to pay, not exceeding the contract price, the reasonable value of all light furnished the city under the contract up to the commencement of this action in the court below, with 7 per cent. interest thereon, first deducting the amounts of said warrants. It is claimed that because the other members of the city council, at the time of the letting of the contract, knew that Wasmer was a stockholder of the company, the contract is valid. This is certainly untenable. The right of the city or a tax-payer to avoid the contract is not affected by the fact that no wrong was practiced upon the city. The plaintiff has not been guilty of such laches as to bar it from maintaining this suit. The allegations and proof are that the plaintiff continually protested against the performance of the contract. It was diligent in the assertion of its rights as a taxpayer. It is also urged that the council, by extending the time of performance of the contract, and by auditing and allowing the claims for the light furnished, was an affirmance and ratification of the contract. During all this time Mr. Wasmer remained a member of the city council, and also a stockholder in the light and fuel company; and it is clear, if the council could not make a valid contract in the first instance on account of the interest of one of its members in the contract, it could not make it valid by any subsequent acts of the council while that interest remained. The evidence shows that Mr. Wasmer resigned as secretary and treasurer of the company before the claims were allowed, but we find no evidence in the bill of exceptions that he had ceased to be a stockholder. The decree of the district court is therefore modified in accordance with the views herein expressed, and, as thus modified, is affirmed. Judgment accordingly. The other judges concur.

(29 Neb. 149)

CALL PUB. Co. v. CITY OF LINCOLN. (Supreme Court of Nebraska. March 19, 1890.) CITIES PUBLICATION OF NOTICES-CONTRACTS.

1. Neither the duty nor the power to contract for the publication of notices, claims, advertisements, proclamations, reports, or ordinances is imposed by the terms of charters of cities of the first class upon the city, the mayor, and council, or either or any officer of the city.

2. No member of the city council, as committeeman or otherwise, has legal power or right, nor is it his duty, to designate the person who shall publish, or the newspaper in which shall be printed, any notice or other matter for the city.

3. Notices and other matter published by a corporation in which a city councilman is a stockholder, held to be legal, and such corporation entitled to pay therefor from the city.

(Syllabus by the Court.)

Error to district court, Lancaster county; FIELD, Judge.

Charles L. Hall, for plaintiff in error. G. M. Lambertson and H. J. Whitmore, for defendant in error.

COBB, C. J. The Call Publishing Company, a corporation issuing a daily and weekly newspaper, sued the city of Lincoln to recover the value of printing and publishing certain ordinances, advertisements, and public notices, required by law to be published, from July 16 to October 13, 1889, inclusive, at the legal rate of 25 cents per square, amounting to $159.25, which, having been advertised, was presented to the city council for allowance, and was rejected, from which appeal was taken to the district court. The petition alleges that one of the councilmen of the city, H. M. Bushnell, is a stockholder in the plaintiff's corporation, and was chairman of the council's committee on printing during the time of the publication of the ordinances, advertisements, and public notices mentioned, which were so ordered, printed, and published according to the established usage and custom of the defendant. The defendant demurred on the grounds (1) that a recovery would be against public policy; (2) that it would be against the provisions of section 46, c. 14, of the Session Laws of 1889,-which were sustained by the court, and the petition dismissed, at plaintiff's costs. The plaintiff's grounds of error are that the court erred in sustaining the demurrer, and in dismissing the petition at the plaintiff's costs.

While it may have been, and probably was, the general intention of the legislature, in framing and passing the act entitled "An act to incorporate cities of the first class, and regulating their duties, powers, government, and remedies," approved March 29, 1889, popularly known as the "Lincoln City Charter," to provide that all.supplies furnished and all services rendered to the city, except the services of the officers therein provided for, should be furnished or rendered under express written contract upon competitive bids or proposals therefor, yet I am unable to find any section, clause, or provision which expressly, or by implication, makes it the duty of any officer or department of the city to enter into contract for the publication of any of the notices therein required to be made; nor for the printing, the maximum price of which is limited by the ninety-third section of the act. But, on the contrary, a consideration of the several provisions of the act, and especially of said section 93, leads me to the conclusion that the legislature did not intend that it should be imperative upon the city government to enter into a contract upon competitive propositions for its necessary printing or publishing. In section 29 of the act the city engineer is required to "make estimate of the cost of labor and materials which may be done or furnished

by contract with the city, and make all | surveys, estimates, and calculations necessary to be made for the establishment of grades, building of culverts, sewers, water-works, bridges, curbings, and gutters, and the improvement of streets, and erec. tion and repair of buildings," etc. And said section further provides that before the city council shall make any contract for the above character of works, or any other work or improvement to cost over two hundred dollars, an estimate of the totalcost, together with detailed plans and specifications, shall be made by the city engineer, etc.; "and in advertising for bids for any such work, "etc.,“ such advertisements shall be at least ten days in some daily newspaper of general circulation published in the city." Section 36, among other things, provides that" no claim, arising either on contract or tort, exceeding the sum of $25.00, shall be allowed until the same shall have been read in open council, and the name of the claimant, and the amount and nature of the claim, published once in a daily newspaper published, and of general circulation, in said city.' Section 40 provides for the passage annually of an ordinance, to be termed the “Annual Appropriation Bill" and section 41 provides that before such annual appro- | priation bill shall be passed the council shall prepare an estimate of the probable amount of money necessary for all pur-❘ poses to be raised in said city during the fiscal year, etc., and shall cause the same to be published for one week in some daily newspaper published, and of general circulation. In the city. Section 48 provides that all ordinances of a general nature shall, within one month after they are passed, be published in some newspaper published within the city, or in pamphlet form, etc. There are several other provislons of the act providing for the publication of notices, all in substantially the same language; and, finally, section 93 is as follows: "The mayor or council shall not allow or pay for the printing of any notice, advertisement, or publication in any newspaper any greater sum or rate than twenty-five cents per square, of unleaded nonpareil type; and such bill shall first be audited by the city clerk.

The language of these provisions, con- | sidered separately or together, repels the idea or conclusion that such publication or printing is to be contracted for; and as to what officer of the city upon whom shall rest the duty or responsibility of selecting the newspaper in which such publications shall be made, or the person who shall do such printing, the act is absolutely silent. The only conditions seem to be that the paper in which the notices are published shall be a daily newspaper, published, and of general circulation, in the city; that the notice shall be printed in nonpareil type; that the matter shall be unleaded; the charge or account therefor shail not be at a rate exceeding 25 cents per square, and shall be audited by the city clerk. If the printing and publishing for which this action was brought had been done under contract with the city, the case would fall within the reason and authority of, and be governed by, the case of Gas

Co. v. West, ante, 242, (decided at the present term;) but, the same not having been done under contract, and there being no provision of law under which it could have been so done, neither that case nor the cases there cited are deemed to be applicable. Section 46 of the act under consideration provides that“no officer of any city shall be interested, directly or indi rectly, in any contract to which the corporation, or any one for its benefit, is a party; and such interest in any such contract shall avoid the obligation thereof on the part of said corporation, nor shall any officer of the city be interested, directly or indirectly, in any contract to perform any work for or furnish any material to any contractor or subcontractor, intended for use, or which shall be used by the latter, in the performance of any contract with the city; nor shall any officer of the city, directly or ind rectly, sell or furnish any material to such contractor or subcontractor, to be used or which shall be used by such contractor or subcontractor in the performance of any such contract, or by any employe of the city in performance thereof. Any violation of the provisions of this section shall avoid the obligation of every such contract on the part of the city, and defeat any recovery for any materials so sold or furnished, " etc.

By a careful reading of this section it will be observed that it was not the intention of the legislature to declare the contracts therein referred to absolutely void, but to "avoid the obligation of such contract on the part of the city, and defeat any recovery for any material so sold or furnished," etc. The purpose of this peculiar language is quite obvious. It was to leave life in such contracts that they might be enforced by the city, should it be deemed to its advantage to do so, but at the same time to deprive them of all binding force as against the city. I am not called upon, in the case now under consideration, to discuss or pass upon the proposition as to the power of the legislature by positive enactment to impress a character of fraud upon a certain class of contracts as to the rights of one of the contracting parties, and leave the rights of the other contracting party, without regard to knowledge or notice, unaffected and unsullied. I do not say that such power does not exist when, as in this section, it is directed alone to express contracts; but I do hold that the legislative power does not exist to impress such a quality upon an implied contract, or an assumpsit, even by express and direct language, certainly not by implication. I therefore conclude that the plaintiff's cause of action is not affected, nor his recovery forbidden, by the terms of the city charter. The question remains whether the common law interposes an insuperable obstacle to the recovery in this case. This action is brought for services in the printing and publishing by the plaintiff company for the defendant city of certain notices, claims, advertisements, proclamations, reports, and ordinances. It appears from the petition that, as a matter of fact, H. M. Bushnell, a member of the city council, and chairman of the commit

tee on printing, "brought" these notices, | claims, advertisements, etc., to the plaintiff corporation, of which he was at the time a stockholder, to be printed and published, and it is claimed that it was his duty, as such councilman and committeeman and chairman, to procure such printing and publishing to be done. I do not So understand the law. As above stated, while it is made a condition precedent to the allowance of claims exceeding $25, that they be published, (and many other notices and matters are required to be published,) yet the charter nowhere expressly points out the officer or person whose duty or privilege it is to select the person who shall do the printing, or the newspaper in which the notice or other thing shall be published.

The charter requires many things to be done by the mayor and council, but it also points out the manner in which these things shall be done, to-wit, by ordinance, and in a few instances by resolution or vote. Aside from his duties in connection with the council, the mayor has many executive duties to perform, but the councilmen, either collectively or individually, none whatever. It therefore follows that if Councilman Bushnell, either as chairman of the committee on printing or as a councilman, "brought" these notices and other matters to the plaintiff to be printed and published, it was a gratuitous act on his part, and it had no effect upon the legal aspects of plaintiff's claim. But it is claimed that it would be against public policy to hold the city legally liable for this work, a member of the city council being a stockholder of the corporation doing it, and presenting the claim therefor. This proposition depends for its force upon the idea that Bushnell, by virtue of his official position, could legally control and direct this expenditure of the city to the printing office of the plaintiff. I have shown, at least to my own satisfaction, that he could not. If, instead of a councilman, the city attorney, the chief of police, or a policeman had been a stockholder of the plaintiff company, would considerations of public policy prevent a recovery? It will scarcely be claimed that they would, and yet neither of these officers has less right or legal power to designate the person who shall print, or the newspaper which shall publish, for the city, than a councilman has, whether a member of the committee on printing or not. It is scarcely necessary to say that the approval of the account by the chairman of the committee on printing is a mere nullity, as the charter requires such accounts to be approved by the city clerk, and not by any other officer or person. I know of no rule of public policy that denies to a person performing a necessary labor for another, be that other a natural person or a corporation, the right to his pay therefor. On the contrary, this right is too important to be overcome by a mere sentiment and technical theory of corporate independence. Again, if the publication of these notices and other matters in plaintiff's newspaper was held illegal for the purpose of payment therefor, it would logically follow that they be held illegal for all purposes, and, as many

1. Where property is stolen from a corporation, it is unnecessary, on the trial of the thief, to introduce the articles of association or charter of the corporation. It is sufficient to prove that such a corporation in fact was in existence, and was possessed of the property stolen.

2. Amendment of information held to have been unnecessary, and the procedure thereunder worked no prejudice to the accused.

(Syllabus by the Court.)

Error to district court, Boone county; HARRISSON, Judge.

Miller & Harris, for plaintiff in error. Wm. Leese, Atty. Gen., and A. J. Price, for the State.

MAXWELL, J. In January, 1889, an information was filed against the plaintiff in error in the district court of Boone county, in which he was charged with the larceny of $1,000, "the property of the Albion State Bank of Albion, Boone county, Nebraska." To this information he pleaded, "Not guilty." On the trial of the cause, after the jury had been impaneled and sworn, the prosecuting attorney, upon leave granted, amended the information as follows, after the words, "Albion State Bank," by adding: "A corporation organized and doing business under the laws of the state of Nebraska." The court thereupon required the defendant below (plaintiff in error) to plead anew to the amended information, which he did by again pleading, "Not guilty;" and the jury previously impaneled was again sworn to try the issue joined. The plaintiff in error pleaded these facts in bar of the further prosecution of the case. The plea was overruled, to which exceptions were duly taken. Th The jury rendered a verdict of "Guilty as charged in the information," and the plaintiff in error was sentenced to imprisonment in the penitentiary for three years.

The evidence is not in the record and the only question before the court is the ruling of the district court in permitting the amendment of the information after the jury was impaneled and sworn. It is claimed that this operated as a discharge of the accused, particularly as the court had caused the jury to be sworn again, thereby treating the case as if the jury had been discharged. Section 412 of the Criminal Code provides that "no indictment shall be deemed invalid, nor shall the trial, judgment, or other proceedings be stayed, arrested, or in any manner affected-First,