| W. Va. | Sep 21, 1915
The decree appealed from, pronounced on bill, answer of defendants, and proofs taken, dissolved the preliminary injunction, denied all relief, and dismissed the bill.
The sole relief sought was an injunction. The preliminary
The contract pleaded and referred to in this order of injunction, interference in the execution of which by the plaintiff was charged against the defendants, as indicated in said order of injunction, was for furnishing all materials and performing all labor required in the grading, paving, and setting of curb, and all other work incident thereto, on certain avenues, lanes and streets, designated in the contract, and in accordance with certain lines, levels, stakes, profiles, plans, specifications, and instructions of the engineer, as therein stipulated, and which plans, etc., were made a part of the contract.
That all preliminary steps provided by chapter 8, Acts 1908, sections 49c, et seq., chapter 47, serial sections 2456, et seq., Code 1913, and necessary to the entering into of a valid contract, had been taken by the council and people, is not controverted.
The defenses interposed and mainly relied on in the answers are: First, that the said contract of January 9, 1913, calling for practically 29,365 square yards of paving at $1.87 per square yard, and for 19,550 lineal feet of curbing at 31 cents per foot, and for 894 lineal feet of rough curbing
Second, that assuming authority of the council, after approval by it of the plans, specifications, estimates, grades, profiles, etc., on file with the recorder and engineer, and ratification thereof by the vote of the people,- as provided by said act, to change the width of the streets, alleys and lanes, as claimed, so as to bring the contract price for the whole, after applying the proceeds of the $54,000.00 of bonds authorized by the vote of t.he people, no legal action of the council had in fact been taken to so modify such plans and specifications therefor, as approved, and that the contract which the counsel had attempted to make with plaintiff, made said plans and specifications without modification parts of the contract, and if binding, bound the parties to the full performance thereof, thereby creating a debt beyond the amount limited by the constitution, without having first submitted all questions pertaining thereto to a vote of the people, as provided by law, and that for these reasons also the contract is void.
Third, that as the bonds authorized by the vote of the people, on submission of the proposition to pave, curb and otherwise improve the several streets, lanes and alleys according to the plans and specifications then on file in the office of the recorder and in the office of the engineer, had not at the time oi entering into the alleged contract been sold and the proceeds thereof placed in the treasury, said contract in law constituted a debt by a contract binding the town, and for the amount called for thereby, and beyond the constitutional limitation of five per cent, of the taxable value of the property of the town, not approved by the vote of the people, and for these reasons was also void and unenforceable.
These propositions, as we understand them, comprehend the several positions of counsel for the Town of Edgewood.
Our decision must turn mainly upon the correctness of the second and third propositions. On thé second we agree with counsel that the informal consideration of the subject by the members of the council at the home of one of them, but at which no formal action was taken, did not constitute a change or modification of the plans and specifications. And ‘it is doubtful if such a change could be made without a resubmission of the proposition to the people. Such a change would require formal action by the council. City of Sacramento v. Kirk, 7 Cal. 419" court="Cal." date_filed="1857-07-01" href="https://app.midpage.ai/document/city-of-sacramento-v-kirk-5433381?utm_source=webapp" opinion_id="5433381">7 Cal. 419. A municipal body can speak only by its records in such cases. Moreover, no such modification was subsequently carried into the contracts so as to bind the parties thereto. Nor do we think the reservation in the published notice to bidders, of the right to order the omission of any part or parts of the work embraced in the bids, not covered by the contract subsequently entered into, operated to cut down the amount contracted for. True, there is a provision in paragraph sixteen of the contract; reserving to the town the right to make such changes in the plans and specifications as may from time to time appear necessary, etc.; but it is doubtful if this provision contemplated a change in the width of the streets and alleys, and if so, it may be further doubted whether such a change of the approved plans could lawfully be made in this way. But we need not decide this question, for there has been no lawful action of the council on that subject.
But as it is conceded that the total amount of the work called for by the plans and specifications, at the prices stipulated in the contract, exceeds the amount covered by the bonds and other revenues available, the controlling question' presented is whether the contract is one of entirety or is severable so as to be enforced to the extent of the work which may be done under the contract, without exceeding the debt limit? The contract here calls for an estimated amount of paving and curbing, at a stipulated price per square yard, and for an estimated number of feet of curbing, at a stipulated price per line'al foot, and for the extra concrete and gravel foundation at a stipulated price per yard. The contract is, therefore, so far partible that it can be definitely determined by simple calculation when the amount of the work done exceeds the debt limit. Is the contract then void in toto and unenforceable to any amount, because the total work estimated at the stipulated prices will exceed the amount of work for which the defendant corporation might lawfully contract? We find abundant authority for the proposition that where a municipal corporation enters into a contract for public improvements in excess of the amount authorized, the contract is nevertheless good and enforceable to the limit of the amount authorized, and void only as to the excess. Among
Wherefore, in view of these authorities, we are of opinion that plaintiff is entitled to the benefits of its contract and to enforce the same, and to perform the work and labor and furnish the material called for, up to the amount limited by the bonds authorized and other available funds, but that such contract in so far as it exceeds the amount so limited is void and unenforceable.
Our conclusion, therefore, is to reverse the decree below, and to modify the preliminary injunction in accordance with the views herein expressed, and being so modified to enter a decree here perpetuating the same.
Reversed and rendered.