WILLIAM J. MURTAGH v. DISTRICT OF COLUMBIA

WILLIAM J. MURTAGH v. DISTRICT OF COLUMBIA. At Law. — 14,517. I. The publisher of a newspaper contracted with the Commissioners of the District of Columbia to publish the tax list for said District ; but before either party was called upon to perforin the same, Congress changed the law under which such contract was made. There was no special agreement under the new act, and it was held that he could only recover what the work was fairly and reasonably worth. II. When tlie law requires the tax list to be published in a daily newspaper, evidence is not admissible to prove tire cost of publication, composition, and distribution in a job printing office, or to prove the niere offer of the proprietor of another newspaper to publish the tax list of a subsequent year. STATEMENT OE THE CASE. The declaration in this cause contains the common counts, and one in indebitatus assumpsit for the sum of $94,187 for printing and publishing in “ The National Republican ” certain tax lists for the sale of real estate in the District of Columbia, and for extra composition, &c. The bill of particulars sets forth that the advertising consisted of 94,187 lines, at one dollar per line. There is also a charge for extra work, and a credit by cash of $50,000. On#the trial of the cause the plaintiff proved that he offered to publish such tax list in “ The National Republican,” of which he was the proprietor, for one dollar per line, headings, &e., to the columns not to be charged for; and that the Commissioners of the District accepted such proposition in writing on the 5th day of February, 1875. The contract was made under a paragraph of the fourth section of the statute of June 20, 1874, as follows: “ It shall be the duty of the collector of taxes to prepare a complete list of all taxes, and property upon which the same are assessed, in arrears on the 1st day of March next, and shall, within ten days thereafter, publish the same, with the notice of sale, in a newspaper published in said District, to be designated by said Board of Commissioners, for the time and in the manner required by the provisions of the act of the Legislative Assembly entitled ‘An act prescribing the duties of certain officers for the District of Columbia, and fixing their compensation,’ approved August 23, 1871.*’ (18 Stats., 116.) The act of the Legislative Assembly referred to in the above extract provides that the collector of taxes shall prepare a complete list of the real estate in arrears, “ and publish such list twice a week for four successive iveeksf &c. (See Acts of the Legislative Assembly, 1st session, p. 143.) This Avas the law in force when the contract with the plaintiff was made. On March 3, 1875, the above was amended “ so as to substitute the word ‘ June ’ for the word ‘ March,’ and so as to provide that it shall be the duty of the collector of taxes to pi’epare a complete list of all taxes, and property upon which the same are assessed, in arrears on the 1st day of June, 1875, and he shall, within ten days thereafter, publish the same, with a notice of sale, in the regular issue of a daily newspaper published in said District, to be designated by the Commissioners of the District, twice a week for two successive weeks.” (18 Stats., 419, sec. 13.) The tax lists were not delivered to the plaintiff till June 1, 1875, and he made publication of the same, commencing on the 10th of that month, and had distributed four editions of said advertisement, and was getting the other editions, to the number of eight, ready to meet the requirements of the act of 1874, when he received a letter, dated June 23, from the Commissioners, informing him that they declined paying him for more than one-half the insertions covered by his offer of February 5, 1875. On the same day he replied, and denied-that the Commissioners had any power "to alter or change the agreement of that date, and that he would publish said tax list iu accordance with the terms of that agreement. He thereupon continued the publications, making eight insertions, as pi’ovided iu the act of 1874. The number of lines in the advertisement was 94,187, and it was admitted that he had received a cash payment thereon of $50,000.' Considerable evidence was introduced as to the value of the work. The defendant -introduced evidence to show the value of performing this work in 1875 in a job printing office; and that in 1876 a proposition was made by the proprietors of “ The Daily Critic ” to publish the tax list of that year at the rate of 5-J cents per line for each insertion. The admission of this evidence was objected to, and is now before the court on exceptions. The plaintiff requested, the court to instruct the jury that the act of Congress approved March 3,1875, which provided that said tax lists should be published twice a week for two successive weeks, could not be held to abridge, or enlarge, or in any manner change the terms of the contract between the parties; and that if the jury should find from the evidence that the plaintiff did publish the list according to said contract, except that the publication was made in the month of June instead of the month of March, 1875, he was entitled to recover for the work at the agreed price, to wit, at the rate of one dollar per line. The court refused to so instruct the jury, and an exception to this ruling, was the point principally discussed at the argument; it was repeated substantial!}' in different forms and with the same result. The jury were instructed, among other prayers requested by defendant, that the plaintiff' could recover under his declaration no more than his services were reasonably worth, and the plaintiff excepted. The jury found a verdict upon a quantum meruit. The cause is now here upon a bill of exceptions on a motion for a new trial in the first instance. Enoch Totten and W. D. Davidge, for plaintiff, argued that the contract of February 5, 1875, was perfect, and the act of Congress of March 3, 1875, could not impair its obligation; and cited Maetier v. Frith, 6 Wend., 112; Taylor v. Merchants’ Insurance Co., 9 How., 390; Eliason v. Henshaw, 4 Wheat., 225; Brisbane v. Boyd, 4 Paige, 16; Adams v. Linsdale, 1 B. & Ald., 681. A. G. Biddle, for the-District Commissioners. The matter is this, and no more: The executive of the District contracted with the plaintiff for a thing to be done in the due administration of public law. Ere the thing was done, the sovereign changed the law. It was changed before any party had entered upon the execution of the thing. This change of the law destroyed the foundation of the only contract which ever subsisted — the price per line of the publication. That was at one dollar for eight insertions. The law reduced the number to four. The plaintiff still secured the job, but was remitted to his quantum meruit. This was the only case made by his declaration. This was left fairly to the jury. [MAJORITY — Mr. Justice MacArthur Humphreys, J.,] Mr. Justice MacArthur delivered the opinion of the court: After stating the case and going into an examination of the questions of law raised by the assignment of errors, he announced the following propositions as presenting the conclusions of the court: 1. The contract of February 5, 1875, while it remained unperformed, was subject to any legislative enactment which Congress might deem proper for the public interest. After March 3,1875, there was no other power than that contained in the provisions of the act of that date to publish a tax list. It is conceded that no special contract was entered into under this statute. A majority of the court are therefore of opinion that the work is to be considered as being done without any special agreement, and that the' plaintiff is entitled to recover what it is fairly and reasonably worth. 2. The testimony offered by the defendant to prove the cost of composition, publication, and distribution in á job printing office of a tax list like the one in question, was improperly admitted against the plaintiff’s objection, and the exception thereto is sustained. 3. The testimony of defendant to prove a mere offer or proposition made in 1876 by the proprietors of “The Daily Critic,” to publish the tax list for that year, was .also incompetent, and the exception thereto is sustained. These two exceptions are sustained by all the judges who heard the case, and a new trial is therefore allowed. Humphreys, J., expressed his opinion to be, that the plaintiff was entitled to the benefit of the contract of February 5, 1875, and also concurred in the decision granting a new trial for the error contained in the exceptions last mentioned.