Kotschevar v. Township of North Fork , 229 Minn. 234 ( 1949 )

The authorities cited in the majority opinion, and which it follows, with the exception of the cases of Lindgren v. Towns of Algoma and Norland, 187 Minn. 31, 244 N.W. 70, and Mares v. Janutka, 196 Minn. 87, 264 N.W. 222, either arose under statutory or charter provisions containing no prohibition against letting contracts in any other manner than by a letting to the lowest bidder after advertising for bids, or entirely ignore such prohibition. All of them entirely ignore, as does the majority opinion here, not only the public policy of the prohibition, which is aimed at waste of public funds, favoritism in letting public contracts, corruption, and graft; but also statutory changes to make that policy effective notwithstanding the decisions of this court nullifying it. In specific terms, the prohibition applies to township officials. The Wakely case (184 Minn. 613,240 N.W. 103, 84 A.L.R. 920) is an illustration of ignoring the prohibition. The Lindgren, the Mares, and the other cited cases will be discussed infra. While the majority takes notice here of the prohibition, the decision in effect nullifies it and gives no sufficient reason for doing so.

1. M.S.A. 160.39 provides that no town shall contract for the construction or improvement of any road where the contract price exceeds $500 unless and until plans and specifications for the work shall have been prepared and filed and an award thereof has been made to the lowest bidder after advertisement as provided in § 164.22. A statute couching a prohibition in negative terms imports a mandate that the act required shall not be done otherwise than as designated. Equitable L. Assur. Society v. Clements, 140 U.S. 226, 11 S.Ct. 822, 35 L. ed. 497 (provision that no policy of life insurance shall be forfeited under certain circumstances, but shall be subject to commutation); 50 Am. Jur., Statutes, § 29; 59 C. J., Statutes, § 632. As said in Gomez v. Timon, 60 Tex. Civ. App. 311, 314,128 S.W. 656, 657:

"* * * Prohibitory words can rarely if ever be directory. There is but one way to obey the command 'thou shalt not,' which is to abstain altogether from doing the act forbidden."

In Lundin v. Township of Butternut Valley, 172 Minn. 259,214 N.W. 888, we in effect so construed the statutes in question so far as they relate to bridge contracts, but without discussion of the principles compelling such decision. So here, because the statute says in effect that no town shall let a contract for road construction for a contract price exceeding $500 without advertising for bids, it not onlyprohibits a town from letting such a contract without advertising for bids, but also in effect from letting it in any other manner.

The fact that the statute contains such a prohibition is of the utmost importance in determining the right of a town not only to contract, but to incur liability at all (Zottman v. San Francisco, 20 Cal. 96, 81 Am. D. 96; Village of Fort Edward v. Fish, 156 N.Y. 363, 50 N.E. 973; McDonald v. Mayor, etc.,68 N.Y. 23, 23 Am. R. 144), as will be shown later.

2. While the statute (§ 160.39) prohibits the letting of such a contract without advertising for bids and in effect prohibits the letting of such a contract in any other manner, and while the statute does not in express terms prohibit recovery in quasi contract for work done contrary to its provisions, the statute by clear implication prohibits such recovery.

To begin with, the law will not imply a promise or base a quasi-contractual liability upon an act prohibited by law. Macy v. City of Duluth, 68 Minn. 452, 71 N.W. 687; Zottman v. San Francisco, supra; McDonald v. Mayor, etc., supra. In Stone v. Bevans, 88 Minn. 127, 129, 92 N.W. 520, 521, 97 A.S.R. 506, holding that a village could recover money paid to one of its officers in violation of statute notwithstanding the fact that the services were meritorious and beneficial, we said:

"The purpose of this statute is plain, and the contract, being within its express prohibition, was void, and cannot be made the basis of a valid contract relation."

And as Mr. Justice Field (then chief justice of the California court) said in the Zottman case, supra, in holding that a city was not liable in quasi contract for work done under a contract void for failure to advertise for bids (20 Cal. 106):

"* * * What they [the city officials] thus had no authority to agree in advance to pay for the work, they had no authority to agree to pay after the work was completed. * * * The lawnever implies an agreement against its own restrictions andprohibitions, or as it is expressed in the New York case [Brady v. Mayor, etc., 16 How. Pr. 432, 446], 'the law never implies an obligation to do that which it forbids the party to agree to do.' " (Italics supplied.)

Such a statute is a limitation on the power of town officials to contract — it prescribes the only method of making such a contract and of incurring liability for such work. Reams v. Cooley, 171 Cal. 150, 152 P. 293, Ann. Cas. 1917A, 1260. Tooke,Quasi-Contractual Liability of Municipal Corporations, 47 Harv. L.Rev. 1143, 1144-1145. In the Reams case the court said (171 Cal. 154, 152 P. 294):

"* * * Under such circumstances the express contract attempted to be made is not invalid merely by reason of some irregularity or some invalidity in the exercise of a general power to contract, but the contract is void because the statute prescribes the only method in which a valid contract can be made, and the adoption of the prescribed mode is a jurisdictional prerequisite to the exercise of the power to contract at all and can be exercised in no other manner so as to incur any liability on the part of the municipality. Wherethe statute prescribes the only mode by which the power tocontract shall be exercised the mode is the measure of thepower. A contract made otherwise than as so prescribed is notbinding or obligatory as a contract and the doctrine of impliedliability has no application in such cases." (Italics supplied.)

The consensus of the authorities is that the public policy of such a statute is to protect the public against improvident and wasteful expenditure of public funds, favoritism in letting contracts, corruption, and graft, and that to make such policy effective the statute not only requires public bidding, but also in effect prohibits public officials from incurring liability in any other way — much less by plain violation of the statute itself. Reams v. Cooley, supra; Federal Paving Corp. v. City of Wauwatosa, 231 Wis. 655, 286 N.W. 546; 6 Williston, Contracts (Rev. ed.) § 1786A; Restatement, Restitution, § 62.

The rule of the overwhelming weight of authority is summed up in 43 Am. Jur., Public Works and Contracts, § 95, as follows:

"It is well established that no recovery can be had by a contractor for the construction of a public improvement or other contract with a public body made by public authorities without compliance with the provisions of law requiring letting of such contracts upon competitive bidding, even though such contract is duly executed and signed and the work has been executed in accordance with its terms. Not only is the contractitself illegal and unenforceable, but the general rule is thatthere is no implied liability on the part of the municipalityor other public body with which such contract was attempted tobe made for work to be done or materials furnished pursuantthereto, for the reasonable value of the services or materials,even though the public body has received the benefits of suchperformance. These provisions exist to protect citizen taxpayers from unjust, ill-considered or extortionate contracts, or those showing favoritism, and if the public body is suffered to disregard them and the other party permitted to recover upon an implied contract, such provisions can always be evaded and set at naught. To depart from these principles would be to open the door to abuses and practices fraught with danger to the welfare of the citizens and taxpayers of municipalities and political subdivisions of the state." (Italics supplied.)

3. In addition to the public policy implicit in the statute (§ 160.39) itself, other statutes manifest a strong public policy that officials must perform their duties in strict accordance with statute. Sections 612.04 and 613.51 declare malfeasance in office to be a gross misdemeanor punishable by both fine and imprisonment. Since misdeeds of an official affecting performance of his duties constitute malfeasance (State ex rel. Martin v. Burnquist, 141 Minn. 308,170 N.W. 201, 609), there can be no doubt that incurring liability for work without the letting of a contract after first advertising for bids where the statute so requires, as here, constitutes malfeasance in office.

It is the policy of the state not only to ferret out such irregularities and others, but to bring the offenders to justice by providing for laying the facts before the proper prosecuting officials and making it their duty to prosecute the offenders. An elaborate machinery is set up for the purpose by M.S.A. c. 215, creating the office of public examiner and making it the duty of that official to discover such crimes and to cause the offenders to be prosecuted. Section 215.14 makes the chapter specifically applicable to towns. There can be no doubt that the public examiner's office was created to make effective the public policy of the state embodied in other statutes to prevent dishonesty, fraud, favoritism, and wasteful expenditure of public funds. It is a matter of common experience that the prohibited transactions have their inception in what those concerned therein euphemistically call "harmless" deviations from "technical" rules. In every case they justify wrongdoing as having been done in "good faith." Everyone knows that such justifications reveal an obtuse indifference to duty and are only a mask to cover manifest wrongs committed. The purpose of the statute creating the public examiner's office was to make sure that, where the policy of suppressing such wrongs and punishing such wrongdoers is not made effective at the local level, it should be done by the intervention of the state itself through the public examiner.

4. While it may seem trite to say so, it is the plain and mandatory duty of the court to give effect to the statute (§ 160.39), regardless of whether its policy meets with the court's approval. As said in State ex rel. City of St. Paul v. M. St. P. S. S. M. Ry. Co. 190 Minn. 162, 165, 251 N.W. 275,277:

"* * * Judges have neither higher function, nor more pressing duty, than to ascertain and give full scope to declared legislative policy when within the competency of the enacting body."

5. We have held, and properly so, that in construing a statute the court should not so construe it as to permit a thing to be done indirectly which cannot be done directly (Dayton v. Corser, 51 Minn. 406, 53 N.W. 717, 18 L.R.A. 80) or so as to practically nullify the statute (North Shore F. F. Co. v. North Shore B. M. T. Assn. 195 Minn. 336,263 N.W. 98). 6 Dunnell, Dig. § 8947. To hold that there can be a recovery in quasi contract in a case such as this has precisely such a result. Zottman v. San Francisco,20 Cal. 96, 81 Am. D. 96, supra. In McDonald v. Mayor, etc.,supra, the court said (68 N.Y. 28):

"* * * Here there is an express legislative inhibition upon the city, that it may not incur liability unless by writing and by record. How can it be said that a municipality is liable upon an implied promise, when the very statute which continues its corporate life, and gives it its powers, and prescribes the mode of the exercise of them, says, that it shall not, and hence cannot, become liable, save by express promise? * * * It is plain, that if the restriction put upon municipalities by the legislature, for the purposes of reducing and limiting the incurring of debt and the expenditure of the public money, may be removed, upon the doctrine now contended for, there is no legislative remedy for the evils of municipal government, which of late have excited so much attention and painful foreboding.Restrictions and inhibition by statute are practically of noavail, if they can be brought to naught by the unauthorizedaction of every official of lowest degree, acquiesced in, ornot repudiated, by his superiors." (Italics supplied.)

Similar expressions by other courts are quoted in the footnote.²

Our cases holding that the plaintiff is entitled to recover the reasonable value of work done have gone so far as to hold in Fargo Foundry Co. v. Village of Callaway, 148 Minn. 273,181 N.W. 584, that the illegally let contract is evidence of the reasonable value. As a practical proposition under that rule, plaintiff, under the guise of recovering for the reasonable value, recovers the agreed price under the illegally let contract. Thus, recovery under the contract and recovery for the reasonable value of the work are the same — one differs from the other in the same degree as does tweedledum from tweedledee. By permitting such recovery, our cases have not only made an absurdity of the statute, but also have entirely nullified it. Such a result is not only wholly unjustifiable, but flows from a clear failure of the court to perform its duty with respect to the enforcement of the statute.

6. Our decisions do not square with the well-settled rules which have been stated. They teem with errors, of which only a few will be mentioned.

To begin with, by permitting a recovery in quasi contract they have entirely nullified the statute requiring advertisement for bids and letting of the contract to the lowest responsible bidder. This has already been made abundantly clear.

The keystone error is the fundamental one that the receipt of a benefit without more creates quasi-contractual liability. This error is the basis for such decisions as Village of Pillager v. Hewett, 98 Minn. 265, 107 N.W. 815; First Nat. Bank v. Village of Goodhue, 120 Minn. 362, 139 N.W. 599,43 L.R.A.(N.S.) 84; Fargo Foundry Co. v. Village of Callaway,148 Minn. 273, 181 N.W. 584; Wakely v. County of St. Louis,184 Minn. 613, 240 N.W. 103, 84 A.L.R. 920; Lindgren v. Towns of Algoma and Norland, 187 Minn. 31, 244 N.W. 70.

Next, the court in cases like Lindgren v. Towns of Algoma and Norland, supra, and Mares v. Janutka, 196 Minn. 87,264 N.W. 222, applied to municipal corporations the rule applicable to private corporations, that, if a contract was not ultra vires in a primary sense, it might be the basis for quasi-contractual liability without considering the question whether the doctrine of liability under ultra vires contracts had any application at all where the contract was a prohibited one. The applicability of the doctrine of ultra vires to such contracts was also mentioned in Laird Norton Yards v. City of Rochester, 117 Minn. 114,134 N.W. 644, 41 L.R.A.(N.S.) 473, and First Nat. Bank v. Village of Goodhue, supra.

In the Laird Norton Yards case, supra, the court held that city charter provisions requiring such a contract to be let to the lowest bidder after advertisement are void as being in conflict with the equitable principle allowing quasi-contractual recovery in such cases (sic).

Our decisions subsequent to the Fargo Foundry Co. case (148 Minn. 273, 181 N.W. 584) failed entirely to take notice of and to give effect to the change made in the prior statute by L. 1921, c. 323, § 55 (§ 160.39), substituting a provisionprohibiting letting by towns of such road construction and improvement contracts without first advertising for bids in place of the one merely requiring that such contracts be so let.

The statutory and charter provisions involved in the Village of Pillager, Bell,³ Laird Norton Yards, and Fargo Foundry Co. cases merely provided that such contracts should be let to the lowest responsible bidder after advertisement. The First Nat. Bank case involved a loan by a village from a bank without first submitting to the voters the question whether it should be made. None of them, as here, involved a statutory provisionprohibiting the letting of such contracts except in such manner. The prohibition was enacted as to towns in 1921 by L. 1921, c. 323, § 55.

The Bell case did not involve the question of the city's liability in quasi contract for goods or services received under a contract not so let, but rather the validity of a contract for the construction of a sewer let without first securing the right of way as required by city charter. Decision turned on an application of the doctrine of ultra vires. The Lindgren and Wakely cases arose under a statute prohibiting the contracts there involved, but did not consider the effect of the prohibition, and were decided by applying the doctrine ofultra vires, merely citing prior cases in which the existence of the doctrine was recognized and without considering the propriety of its application to those cases. In the Mares case the question was considered, but decision was based on application of the doctrine of ultra vires and an untenable distinction between benefits received from furnishing goods and those received from furnishing services. The case of Frisch v. City of St. Charles, 167 Minn. 171, 208 N.W. 650, contains dicta reaffirming what was said in prior cases as to liability in quasi contract for benefits received, but went off on the proposition that there the city had not received the benefits claimed to give rise to such liability.

None of our decisions disclose any judicial perception of the public policy underlying the statute. Rather, they disclose a lack thereof. In the Laird Norton Yards, First Nat. Bank, and the Fargo Foundry Co. cases, as in the instant one, the requirements as to advertising for bids and awarding the contract to the lowest responsible bidder were referred to asformalities relating to the making of contracts. While such characterization is an admirable example of extreme understatement, it is to be deprecated as involving fundamental legal misconception. As has been pointed out, such statutory requirements are limitations upon the power to contract and to incur liability, and embody an important fundamental public policy (see the Zottman, Reams, and McDonald cases, and 43 Am.Jur., Public Works and Contracts, § 95, supra), and should not be thus lightly brushed aside.

Our decisions discussing quasi-contractual liability failed to consider the nature of such liability and whether such cases came within the rules governing the question. Quasi-contractual liability is imposed only where the retention of benefits received would be inequitable, but not otherwise.⁴ Independent School Dist. v. City of White Bear Lake, 208 Minn. 29,292 N.W. 777; Mehl v. Norton, 201 Minn. 203, 275 N.W. 843, 113 A.L.R. 1055. In the particular case, the question is whether equity and justice demand the imposition of liability. Todd v. Bettingen, 109 Minn. 493,124 N.W. 443. Mere receipt of a benefit alone is insufficient. Mehl v. Norton, supra; Bjelland v. City of Mankato, 112 Minn. 24,127 N.W. 397, 140 A.S.R. 460; Stone v. Bevans, 88 Minn. 127,92 N.W. 520, 97 A.S.R. 506, supra; Macy v. City of Duluth, 68 Minn. 452, 71 N.W. 687; Young v. Board of Education,54 Minn. 385, 55 N.W. 1112, 40 A.S.R. 340. "The mere fact that a person benefits another is not of itself sufficient to require the other to make restitution therefor." Restatement, Restitution, § 1c. Where, as here, a statute prohibits the making of the contract, it is neither equitable nor just to impose such liability, for the reason that to do so permits that which cannot be done directly to be done indirectly, and thus practically nullifies the statute. Edison Elec. Co. v. City of Pasadena (9 Cir.) 178 F. 425; Zottman v. San Francisco,20 Cal. 96, 81 Am. D. 96; Bay v. Davidson, 133 Iowa 688,111 N.W. 25, 9 L.R.A.(N.S.) 1014, 119 A.S.R. 650; McGovern v. City of Boston, 229 Mass. 394, 118 N.E. 667; Bartlett v. City of Lowell, 201 Mass. 151, 87 N.E. 195; McDonald v. Mayor, etc.,68 N.Y. 23, 23 Am. R. 144; Cawker v. Central Bitulithic Paving Co. 140 Wis. 25, 121 N.W. 888, all supra. Our cases holding that naked receipt of a benefit creates quasi-contractual liability are clearly erroneous. This misconception, first introduced in the Village of Pillager case, has been followed without question in later ones. The court in considering the question has never reached the question whether in justice and equity — in good conscience — retention by the municipality of such a benefit was a reason for imposing quasi-contractual liability. And how could it so hold? To hold that a transaction conceived in violation of law and of strong public policy appeals to the conscience and sense of justice of the court involves legal incongruity. Under well-settled rules and according to the overwhelming weight of authority, there is no basis for quasi-contractual liability in such cases.

The doctrine of ultra vires, relied on in some cases as a rule creating liability and referred to in others as having such effect, has no application where, as here, the statute prohibits the allegedultra vires act. In re Grand Union Co. (2 Cir.) 219 F. 353, 363; United Order of Good Samaritans v. Meekins, 155 Ark. 407,244 S.W. 439, 28 A.L.R. 89; Mitchell v. Hart,107 Ind. App. 548, 25 N.E.2d 665; In re Mutual Guaranty F. Ins. Co. v. Barker, 107 Iowa 143, 77 N.W. 868, 70 A.S.R. 149; Bath Gas Light Co. v. Claffy, 151 N.Y. 24, 45 N.E. 390,36 L.R.A. 664; 7 Fletcher, Cyc. Corp. (Perm. ed.) § 3595.

In 13 Am. Jur., Corporations, § 755, the rule is stated as follows:

"Another principle of general recognition is that a corporation cannot enter into, or bind itself by, a contract which is expressly prohibited by its charter or by statute; and in the application of this principle it is immaterial that the contract, except for the prohibition, would be lawful. No oneis permitted to justify an act which the legislature, * * * hasdeclared shall not be performed. An illegal contract in the sense of malum in se or malum prohibitum is beyond the power of anyone to make, corporation or private individual. It hasaccordingly been stated that the doctrine of ultra vires has noapplication to contracts of private corporations the making ofwhich is prohibited by statute." (Italics supplied.)

The Mares case, and perhaps others, holding that aprohibited act may be held legal under the doctrine of ultravires, misapply the doctrine. They reach the absurd result that an act may give rise to legal rights even though it is prohibited by law. Plainly, the doctrine can have no application here, because § 160.39 prohibits the acts on which plaintiff would predicate liability.

The Mares case also makes an untenable distinction between furnishing goods and services.

The actor's so-called "good faith" affords no basis for imposing liability. In his dissent in Wakely v. County of St. Louis, 184 Minn. 613, 623, 240 N.W. 103, 107, 84 A.L.R. 920, Mr. Justice Stone pointed out that so-called "good faith" is immaterial, saying:

"* * * Good faith is said to be 'an important element.' That, together with the receipt of benefit, is said to make out a prima facie case. What authority there is for such a conclusion is not indicated. My search has failed to disclose any."

Neither counsel nor the majority have cited any authority for such a conclusion. Certainly, so-called "good faith" would be immaterial in a criminal prosecution. State v. Edwards,94 Minn. 225, 102 N.W. 697, 69 L.R.A. 667; State v. Heck,23 Minn. 549; 2 Dunnell, Dig. Supp. § 2409. As said in Ellis v. United States, 206 U.S. 246, 257, 27 S.Ct. 600, 602,51 L. ed. 1047, 1053, 11 Ann. Cas. 589:

"* * * The argument against the instruction is that the word 'intentionally' in the statute requires knowledge of the law, or at least that to be convicted Ellis must not have supposed, even mistakenly, that there was an emergency extraordinary enough to justify his conduct. The latter proposition is only the former a little disguised. Both are without foundation. If a man intentionally adopts certain conduct in certain circumstances known to him, and that conduct is forbidden by the law under those circumstances, he intentionally breaks the law in the only sense in which the law ever considers intent."

To say that plaintiff here acted in "good faith" involves the incongruity that a lawbreaker may act in "good faith." According to the authorities, other than our own, cited above, such conduct has no appeal to a court's sense of equity or justice and consequently affords no basis for quasi-contractual liability.

Under our rule, the court on the criminal side would deal with those involved in the illegal contract as lawbreakers, subject to fine and imprisonment, entirely deaf to their claims of "good faith," and on the civil side, attentive to such claims, its "conscience," or its sense of justice and equity, if such they could be called under the circumstances, would be moved to grant them a right to recover. In effect we would be lenient (at the expense of the taxpayer) where we should be severe. Justice and consistency require that such parties be treated as lawbreakers both in civil and criminal actions. The obvious absurdity of our rule offends both common sense and justice.

The authorities considered and cited by this court in adopting the rule of quasi-contractual liability raise a serious question as to whether adequate consideration was given to well-settled principles. At the time the Village of Pillager and our other cases were decided, such cases as Argenti v. City of San Francisco, 16 Cal. 256; Zottman v. San Francisco,20 Cal. 96, 81 Am. D. 96, supra; McDonald v. Mayor, etc., 68 N.Y. 23,23 Am. R. 144, supra; Moore v. Mayor, etc., 73 N.Y. 238,29 Am. R. 134, and numerous other cases, had been decided. Those, other than the Argenti case, settled the law as it has been stated above. The Argenti case was overruled in the Zottman case. The Moore case is not in point upon this precise question, because it did not involve the question whether a contract let without first advertising for bids was valid, but rather the one whether municipal authorities have power to ratify a contract irregularly let; but the court reaffirmed the rule of the McDonald case, decided only a short time previously, holding that there is no quasi-contractual liability in a case like this, and made it clear that it did not intend to hold that acts done under a prohibited contract can be the basis of any rights by stating (73 N.Y. 248) that it did not intend "to intimate that a contract expressly forbiddenby statute, * * * can be ratified by the corporate authorities." (Italics supplied.) In effect, it reaffirmed the rule of the McDonald case as to prohibited contracts. See, Tooke, Quasi-Contractual Liability of Municipal Corporations, 47 Harv. L.Rev. 1143, 1157, et seq. This great body of law was entirely ignored in our prior decisions, except that in the First Nat. Bank case the Argenti case was cited, and in the Laird Norton Yards case the Moore case was cited. One thing is plain — that is, that the court in its prior decisions failed to consider pertinent authorities. While the citation in the First Nat. Bank case of the overruled Argenti case and in the Laird Norton Yards case of the Moore case, which really is authority for the rule contrary to the one we adopted, would almost lead one to believe that the court had "culled" the authorities for a few to bolster its view, we know that the fact is to the contrary. But the undeniable fact is clear that such citation reveals that the entire question was inadequately considered, and, because that is true, an erroneous result was reached.

Aside from the fact that the Laird Norton Yards case, so far as it holds that a municipal corporation cannot by charter legislate concerning the letting of public contracts, was overruled sub silentio in Rand Kardex Service Corp. v. Forrestal, 174 Minn. 579, 219 N.W. 943, and is in direct conflict with the rules laid down in cases such as City of Duluth v. Cerveny, 218 Minn. 511, 16 N.W.2d 779, and others there cited (see, Mitchell v. City of St. Paul, 228 Minn. 64,36 N.W. [2d] 132), it is not pertinent in considering the effect of a statute, because obviously the legislature has the power to prescribe the applicable rule.

Finally, and what seems worst of all, is that by failure of the court in its decisions subsequent to the change in statute in 1921, substituting a prohibition against letting such contracts without first advertising for bids in place of therequirement of the prior statute that they be so let, to take notice of and to give effect to the prohibition, the court has not only failed to discharge its plain duty of giving effect to the statute, but has effectually nullified it. Ordinarily, a change in statutory law betokens a change in meaning. In re Estate of Galbraith, 210 Minn. 356, 298 N.W. 253; 6 Dunnell, Dig. § 8997. The change made by the 1921 law was one of substance. The prohibition therein against letting such contracts except after first advertising for bids embodied the rule, then well-settled and established by the authorities, that a statutory or charter provision prohibiting the letting of public contracts except to the lowest responsible bidder after advertisement for bids not only regulates and limits the power of officials to contract, but also to incur liability. McDonald v. Mayor, etc., 68 N.Y. 23, 23 Am. R. 144, and Zottman v. San Francisco, 20 Cal. 96, 81 Am. D. 96, supra. In effect, the legislature not only repudiated the rule of our prior decision law, but also changed it. Consequently, it is our plain duty to give effect to the rule prescribed by the statute.

I think that some of our decisions are also unsound on other grounds, but enough has been said to show that all of them are unsound in principle.

7. In conclusion, our prior decisions should be overruled so far as they are in conflict with the well-settled principles which have been stated. While the doctrine of stare decisis is entitled to great weight and should not be departed from except for urgent reasons, it is no dead hand on the law and is not to be applied mechanically. A postulate, implicit in the doctrine, is that decisions, even a whole series of them, which are clearly erroneous and which were inadequately considered, should not only be reëxamined without reluctance, but also that they should be overruled. Park Const. Co. v. Independent School Dist. 209 Minn. 182, 296 N.W. 475, 135 A.L.R. 59; State v. G. N. Ry. Co. 106 Minn. 303, 119 N.W. 202. After all, cases should be decided according to law, and courts should not only balk at perpetuating and compounding error, but also should as a duty to the bar and the public eradicate it from the law. See, 14 Am. Jur., Courts, § 125.

This is a case for departure from the doctrine of staredecisis. Our prior decisions are not only erroneous, illy considered, and lacking in adequate research, but also judicially nullify a statute enacted to accomplish important public purposes. Those are adequate reasons for overruling them.

In conclusion, I think that we should reverse.

² Edison Elec. Co. v. City of Pasadena (9 Cir.) 178 F. 425, 431:

"The positive prohibition of a statute can no more be avoided by evasion than it can be violated directly. A citation of authorities upon so plain a proposition is unnecessary. So, too, is the law well settled that where, as in the cases between these parties here under consideration, the contract upon which suit is brought is forbidden by statute, the acceptance of benefits raises no implication of an obligation. The law is not properly chargeable with the absurdity of implying an obligation to do that which it forbids."

Bay v., Davidson, 133 Iowa 688, 693, 111 N.W. 25, 27,9 L.R.A.(N.S.) 1014, 119 A.S.R. 650:

"That the town has received the benefits of the contract is not material."

McGovern v. City of Boston, 229 Mass. 394, 397,118 N.E. 667, 669:

"As the city cannot be chargeable upon an express contract entered into in contravention of the statute, it is equally plain that no recovery can be had upon an implied contract: to permit such recovery would be to defeat one of the purposes for which the statute was enacted. To allow the plaintiffs to recover upon a quantum meruit would be contrary to the spirit as well as to the letter of the statute, and would be in plain disregard of its terms. * * * The statute evidently was enacted to safeguard the interests of the defendant; it cannot be evaded or annulled, and must be held to be in full force and effect. Nor can it be regarded as permissive rather than mandatory, or as vesting in the commission a discretionary power to disregard its clearly expressed intent.

"* * * Nor are they [plaintiffs] entitled to recover upon aquantum meruit because the defendant has had the benefit of the work."

Bartlett v. City of Lowell, 201 Mass. 151, 155, 87 N.E. 195,197:

"If the court were to adopt that result it would be puttingthe seal of the law upon a plain evasion of St. 1896, c. 415, § 3; and if that be law all statutes imposing limitations upon the creation of municipal indebtedness can be evaded by a person who is not a contractor delivering personal property, and after that property has been used so that it cannot be restored, claiming to be paid the reasonable value of it." (Italics supplied.)

Cawker v. Central Bitulithic Paving Co. 140 Wis. 25, 29,121 N.W. 888, 889:

"* * * To now hold that the city might, without compliance with such provisions, ratify the contract and so validate it, or that the appellant might, notwithstanding the invalidity of the contract on this ground, go on and complete it and recover upon quantum meruit, would be to make these charter provisions practically ineffective. Former decisions of this court forbid such recovery by the appellant."

See, Appleton Waterworks Co. v. City of Appleton,132 Wis. 563, 650, 118 N.W. 44, 47.

³ Bell v. Kirkland, 102 Minn. 213, 113 N.W. 271,13 L.R.A.(N.S.) 793, 120 A.S.R. 621, cited in the majority opinion.

⁴ Quasi-contractual liability is not consensual, but rather one imposed by law according to equity and justice. The history of quasi contract shows that common-law judges borrowed principles of equity from chancery and administered them as such in common-law actions in assumpsit. Capraro v. Propati, 127 N.J. Eq. 419,13 A.2d 318; 4 Am. Jur., Assumpsit, §§ 3, 10; Restatement, Restitution, Part I, Introductory Note; Ames, TheHistory of Assumpsit, 2 Harv. L.Rev. 1. At common law, quasi-contractual liability was based upon principles of equity and enforced in the common-law action of assumpsit. While the liability was of an equitable nature and the remedy to enforce it was a legal one at law, the action at law proceeded like a bill in equity, for which it was a substitute. Herrmann v. Gleason (6 Cir.) 126 F.2d 936, 939, where the court said that, while the action is "legal in form," it is "equitable to the core."