The only question in this case is as to the *658.action of the court in sustaining the demurrer to the .second count of the answer.
The defendants insist that such action of the court was erroneous, for the reason that, under the charter of the City of Kansas, it is not lawful for the city to make .any contract with a party for work of the character in suit, for which the party holds an exclusive patent, and with whom there is and can be no lawful competition.
The only provisions of said charter which can have any bearing upon this question are as follows:
“All city improvements, of whatever kind or character, including the erection of all public buildings, made or to be erected at the expense of the said city, shall be let by contract to the lowest and best bidder, and as shall be prescribed by ordinance ; provided, that nothing in this section shall be so construed as to prevent the repair, by days’ work, of streets, sewers, culverts, buildings, or other city property, so far as may be necessary to their preservation, under the direction of the city engineer, or other proper officer, when such repairs shall have been ordered to be made by a vote of the common council.”
Do these provisions of the charter apply to work done, not at the expense of the city, but at the expense •of the adjacent property holders ?
Unless these provisions have such application, the demurrer to the second count of the answer was correctly sustained, because the work in suit was done at the expense of the adjacent property holders.
Do the explanatory and descriptive words “made or to be erected at the expense of the said city,” refer to and qualify “improvements,” or “buildings,” only? It is true, as argued by defendants, that in questions of construction, punctuation is entitled to very little, if to any, consideration. It does not follow, however, that we should construe the above provisions of the charter as if there was no comma after the word “buildings,” simply because a comma does not occur there. We can*659not say that a comma should not be there, simply because it is there. Without regard to the fact that the punctution is as it is, we should ascertain the intention and meaning of the legislature, and then so punctuate the provisions as to express such intention and meaning, if the punctuation already made does not do so.
The plaintiff says that the explanatory words mentioned qualify “improvements;” the defendants say that those words qualify “ buildings,” only. The defendants, in support of their position, simply assert that the position of plaintiff depends upon the comma mark after the word “buildings.” They present no reason why the comma should not be there, where it is. They do not attempt to do so. It is true that the plaintiff’s position does depend upon the fact that said mark should be there, in order to express the intention and meaning of the legislature ; but it is incorrect to say that such position depends upon the fact that said mark is there.
We think-that the explanatory words qualify “improvements,” as well as “buildings;” that the comma mark is correctly placed after the word “buildings,” and that the meaning of the provisions is the same as if they read as follows: All city improvements, of whatever kind or character, made or to be erected at the expense of the said city, including the erection of all public buildings, etc.
We do not think that those explanatory words ■qualify “buildings,” only, for several reasons. It is not usual to .speak of a building being made, or of the erection of a building to be erected. Such would be the effect of making those words qualify “buildings.”
It was needless to so explain and qualify the meaning of “public buildings,” as used in those provisions of the charter. The city authorities could erect no public buildings except at the expense of the city. To explain that the public buildings intended were those erected at the expense of the city was useless.
But improvements of the character in suit might, or *660might not, be made at the expense of the city, under other provisions of the charter. To explain and define those improvements to be such as should be made or erected at the expense of the city, was to make those improvements in that respect like every other kind of work mentioned in those provisions, like the “buildings” mentioned in the main part of the provisions and like the work excepted by the proviso from the operation of them.
It is argued by the counsel for the defendants, against this construction, that the officers of Kansas City have placed the contrary construction on those provisions of the charter; that they have invariably acted in accordance with their construction by advertising for bids for all public improvements, whether done at the expense of the city or of the adjacent lot holders, and that contemporaneous construction of a statute, in cases-of doubt, turns the scale. It is a sufficient answer to make to this argument to say that such a course on the part of the officers of Kansas City is no indication of a construction by them of the provisions of the charter under discussion. Those provisions are not self-enforcing ; that is, the mode of advertising and accepting bids, etc., must be provided by ordinance. The course pursued by those officers has been in accordance with the ordinances of the city, and not with the provisions of the charter. Notwithstanding the charter does not require, the ordinances might properly require the work of the character in suit to be done at the expense of the adjacent land holders, to be let to the lowest bidder. The defence set up in the answer was, however, based upon the requirements of the charter, and not of the ordinances. The ordinances were not pleaded. Judicial notice of them will not be taken, where a cause of action or defence is based upon them.
We hold that the requirements of the charter do not apply to the work in suit. It is unnecessary for us, under this view of the case, to express an opinion upon *661the question as to whether the contract by the city for th® work in suit would have been lawful, had the requirements of the charter applied to such work.
Judgment affirmed.
The other judges concur in the result.