Anderson v. Fuller

51 Fla. 380 | Fla. | 1906

Taylor, J.,

(after stating the facts.) Chapter 5363 Laws of 1903, provides for the election by the people of the city of Tampa of a board of commissioners of public works for said city from among the registered voters who are freeholders. By section 21 of this act such board is given exclusive power and control over the construction and repairing of all sewers. By section 24 of said act it is empowered to employ an engineer and such other employees, officials and assistants as may be found necessary. This section also provides that the contracts made by this board shall be made in the name of the city of Tampa, and that any improvements which shall involve an expenditure of more than three hundred dollars shall only be let or made after advertisement thereof, and shall be let to the lowest responsible bidder therefor, upon such terms and secured by such bond as the board may require. Section 28 of said act provides that whenever any sewer or drain shall have been heretofore' or may hereafter be constructed or repaired in said city the city council shall, as soon as the cost of such improvement shall have been certified to them by the commissioners of public works, assess against the abutting property two-thirds of the cost of such improvement in proportion to the frontage of such abutting property on said street, alley, park or highway so improved. Section 29 of said act provides that all such assessments shall constitute a prior lien to all other liens except taxes and those for the construction of side walks, with which liens they shall have equal dignity upon the real estate assessed. Section 30 of said act provides that when at any time the city council shall decide to construct or repair any sewer such council shall pass a resolution or ordinance ordering the same done, and thereupon the commissioners of public works shall advertise for bids for making said improvements. Section 31 of the act provides for the issuance by the city council of certificates of indebtedness for the amounts of the assessments against the abutting property, a separate certificate to be issued against each tract of land assessed containing a description of such land, the amount of the assessment, together with the general nature of the improvement, and shall be made payable to bearer in one, two and three years in equal annual installments with interest to be fixed by the city council at a rate not greater than eight per cent per annum payable annually from the date of the issuance of such certificate.

The rule is well settled that where the charter or incorporating act requires the officers of a city to award contracts for public works to the lowest bidder, a contract made in violation of its requirements is illegal and void, and that neither the municipality nor its subordinate officers can make a binding- contract for such work except in compliance with the requirements of the law. 1 Dill, on Mun. Corp. (4th ed.) Section 466; Fulton v. City of Lincoln. 9 Neb. 358, 2 N. W. Rep. 724; Brady v. Mayor of City of New York, 20 N Y. 312; Nash v. City of St Paul, 8 Minn. 172; Maxwell v. Board of Supervisors, &c., 53 Cal. 389. The purpose and intent of the law in requiring such contracts to be let or awarded to the lowest responsible bidder for the Avork, is to secure the public improvement at the loAvest reasonable cost to the taxpayers. Therefore the incorporation into the advertisement for such bids, or into the specifications for the work upon which such bids are predicated, of illegal or unauthorized conditions or obligations upon the contractor, compliance with which on his part will necessarily and illegally increase the cost of the work, is not a letting- of such contract to the loAvest bidder and will render the contract illegal and void. California Imp. Co. v. Reynolds, 123 Cal. 88. 55 Pac. Rep 802; Stansbury v. White, 121 Cal. 433, 53 Pac. Rep. 940. In the published notice for bids for the performance of the public work involved herein bidders were referred to the office of the engineer of the board of public works for spcifications of the work and materials to be used therein. In the specifications thus referred to are the following provisions: “In digging about water pipes, gas pipes, and sewer or drain pipes, workmen must exercise special care, and such pipes shall be properly supported on timbers or chains, and the cost of such work and of repairs made necessary by injury to said pipes shall be paid by the contractor, and is included in the price bid for the sewer. When such pipes or conduits form an obstruction to the line or grade of the sewer the contractor shall, at his own cost and in the manner prescribed by the engineer, make such removals, alterations, or re-arrangements as may be required by the engineer.”

"The contractor shall be responsible for all damages to buildings, bridges, railroads, street car lines, culverts or other property on the line of the work, and shall replace and make good all macadam or other pavement, crosswalks, &c., disturbed during the progress or in consequence of construction. The contractor shall be responsible for all injury to gas or water pipes and for all waste of gas or Avater due to. the execution of the work. The contractor shall proA'ide for the uninterrupted Aoav through all Avater courses and drainage ways in the line of the Avorlc.”

“The prices bid shall include * * * the relaying of all payments and cross-Avalks, the protection and repairing of all gas pipes, water pipes, sewers, drains and other conduits.”

The contracts entered into by the board Avith the defendants Warren and Warren in pursuance of these specifications and of their bids based thereon contained the following provision, in consonace with such specifications but going still further, vie: “And the party of the second part (the contractor) further agrees that the prices above named shall include the cost of * * * the replacing of all water courses and drains, the proper rearrangement and reconstruction of any drain, water pipe, gas pipe, telegraph, telephone or electric light poles, or pipe or conduit of any nature or description which may be encountered and injured, or which may interfere with the line or grade of the work under this contract; also the maintaining of travel over any railroad or street car line which may be liable to obstruction by reason of said work, and the proper repairing of any injury to same.”

Another rule well settled in the law of municipal corporations is that such a corporation, when it confines itself within the limits of its power and jurisdiction is not liable to an action for consequential damages to private property or persons (unless it be given by special constitutional provision or by statute) where the act complained of was done by it or its officers under and pursuant to authority conferred by a valid act of the legislature, and there has been no want of reasonable care or want of reasonable skill in the execution of the power, although the same act, if done without legislative sanction, would be actionable. 2 Dill. Mun. Corp. (4th ed.) Sec. 987, et seq. And while municipalities may by ordinance grant to individuals and corporations the privilege of occupying the streets and public ways for lawful purposes, such as railroad tracks, poles, wires, gas and water pipes, such rights are at all times held in subordination to the superior rights of the public, and all necessary and desirable police ordinances, that are reasonable, may be enacted and enforced to protect the public health, safety and convenience, notwithstanding the same may interfere with legal franchise rights. A water .company placing its pipes in the streets under a franchise contract with the city, does so in subordination to the superior rights of the public, through its duly constituted municipal authorities, to construct sewers in the same streets, whenever and wkereever the public interest demands; and if in consequence of the exercise of this right, the water company is compelled to relay its pipes, in the absence of unreasonable or malicious conduct, it has no cause of action against the corporation for reimbursements on account thereof. McQuillin Mun. Ord. Sec. 521; National Water Works Co. v. City of Kansas, 28 Fed. Rep. 921; Kirby v. Citizens Ry. Co., 48 Md. 168; Elliott on Roads and Streets, Sec. 476; New Orleans Gas Co. v. Drainage Com., 197 U. S. 453. The city of Tampa was, therefore, not authorized directly or indirectly to burden itself or its citizens with the cost of removing and replacing of the water pipes, gas pipes, telegraph, telephone and electric light poles, drains or conduits or railway tracks that might necessarily have been interfered with in laying its sewers in the streets. And that these contracts did indirectly undertake to cast such burden upon the city there can be no doubt, since the bidders for the work, being advised in advance that they would be required to bear the cost of such removal and replacement, Avould increase their bids sufficiently to cover such cost, thereby casting an unauthorized and illegal burden upon the taxpayers, and defeating the purpose -and object of the law in having the contracts for such works awarded to the lowest responsible bidder. These provisions in these contracts, and in the specifications of the work upon which the bids for the contracts were submitted, requiring the contractors at their cost to remove and replace all water and gas pipes, telephone, telegraph and electric light poles, pipes, drains and conduits and all railway tracks that interfered with such sewers, go to the vitals of such contracts, and render them null and void upon their face; particularly is this true when the city is authorized by its charter to assess the cost of such work against the abutting property. Chippewa Bridge Co. v. City of Durand, 122 Wis. 85, 99 N. W. Rep. 603; Inge v. Board of Public Works, 135 Ala. 187, 33 South. Rep. 678; Colwell v. City of Waterbury, 74 Conn. 568, 51 Atl. Rep. 530, S. C. 57 L. R. A. 218. On the general subject see Diamond v. City of Mankato, 89 Minn. 48, 93 N. W. Rep. 911. That the complainant as a taxpayer in said city can properly maintain the bill filed to restrain the paying out of public moneys upon void and unauthorized contracts there can be no question. Frame v. Felix, 167 Pa. St. 47, 31 Atl. Rep. 375, S. C. 27 L. R. A. 802; City of Blufton v. Miller, 33 Ind. App. 521, 70 N. E. Rep. 989; Peck v. Spencer, 26 Fla. 23, South. Rep. 642.

There are numerous other grounds of objection urged against the contracts involved herein, but as the objection discussed is fatal to the validity of such contracts it becomes unnecessary for us to pass upon the others.

It follows from what has been said that the Circuit Judge erred in denying the complainant’s application for injunction. The order appealed from is, therefore, hereby reversed at the cost of the appellees and the cause remanded with directions to grant the injunction as prayed for in the bill.

Hocker and Parkhill, JJ., concur. Shackleford, C. J., and Cockrell and Wi-iitfield, JJ., concur in the opinion.