Bayne v. Thorson

| N.D. | Jun 30, 1917

Birdzell, J.

(after stating the facts). This action having been brought upon the contract for the nonpayment of the foregoing bill, and not for the reasonable worth of the materials and labor, the only question necessary to be considered on this appeal is that of the validity of the contract under which the materials were supplied and the work done.

The appellant bases the argument for the validity of the contract upon the powers vested-in boards of county commissioners by subdivision 3 of § 3275. Comp. Laws 1913, which authorizes them “to construct and repair bridges, and to open, lay out, vacate, and change highways in the cases provided by law.” The argument is that, except as may be elsewhere limited by express statutory enactment, the poiver conferred by the foregoing subdivision may be exercised in any manner that the county commissioners elect, and that all contracts made in exercising the powers so conferred are valid, in the absence of fraud. Section 3296, Comp. Laws 1913, provides that the board of county commissioners shall let contracts only on competitive bids. The chief subject of this section requiring competitive bidding is building projects, but it is also provided that “the provisions of this section shall apply to all contracts for fuel, stationery and all other articles' for the use of the county, or labor to be performed therefor, when the amount to be paid for the same during any year exceeds the sum of $100; provided, that in all cases advertisements for bids therefor need not be for more than three consecutive weeks in some weekly newspaper published in such county; and provided, also, that all contracts for the furnishing of stationery, blank books, and supplies generally for all county officers, shall be let at the first regular meeting in April to run for the period of one year.”

No doubt the county commissioners in the case at bar acted in pursuance of the authority of that part of the statute quoted above in advertising and contracting for the bridge materials supplied in the instant case. Section 1951, Comp. Laws 1913, provides for the construction of bridges, upon petition of the freeholders of a civil township or of those living within a certain radius of a proposed location. In this section it is made the duty of the county commissioners to investigate the necessity of a proposed bridge, and, after the location is approved, the board is required to “advertise in the official paper in the county, for a period of thirty days, the plans and specifications of the proposed bridge, asking for sealed bids for the building of such bridge, to be submitted to them at their next regular or special meeting . . . and to let the contract to the lowest responsible bidder. Section 1953, Comp. Laws 1913, makes bridge building under the provision of the foregoing section subject to the supervision of the board of county commissioners, and it is expressly provided “that should any emergency arise, requiring the immediate rebuilding or repairing of any bridges, the board of county commissioners are hereby authorized to rebuild or repair, as the circumstances require, and without advertising for bids, in case said work can be performed by a responsible party, at a price not to exceed the last bid accepted by said board of county commissioners for like work.” The appellants argue that, since boards of county commissioners have power under § 3275 to construct and repair bridges, such power is in no way limited by the provisions of § 1851, and that the latter section only applied where freeholders initiate, by petition, the steps looking toward the construction of a bridge. In our opinion the statutes are not subject to the broad construction contended for. It is clearly the purpose of § 3275 to group the powers of the boards of county commissioners that are elsewhere dealt with more particularly and in greater detail. For instance, the section provides that the board shall have power to levy taxes not exceeding the amount authorized by law; to equalize assessments in the manner provided by law; to establish election precincts and appoint judges in cases provided by law. When the contents of the entire section is considered, it becomes quite clear tbat tbe section is not designed to confer broad powers of government upon the county board, but rather as a convenient expression in summary form of tbe powers to act concerning certain matters as elsewhere provided by law. To give tbe statute tbe interpretation contended for would be to vest in tbe board of county commissioners such power to construct bridges at tbeir own discretion and will as would preclude entirely tbe exercise of a similar power upon petition. Tbe bridges required to be built in response to petitions are to be paid for out of tbe county bridge fund; and if tbe commissioners are free to exhaust this fund by building bridges upon tbeir own motion, they can. render ineffectual all petitions of freeholders. It would be strange tbat, in proceeding in response to a petition of freeholders, tbe legislature should require thirty days’ advertisement in tbe official paper of tbe plans and specifications of tbe proposed bridge, and tbat sealed bids be submitted therefor, while no such requirement would exist with reference to those bridges that might be constructed by tbe board of county commissioners acting upon tbeir own initiative. It seems tbat tbe legislature did not contemplate tbe exercise of so broad a power by boards of county commissioners; for, in § 1953, it is expressly provided tbat in emergency cases tbe board of county commissioners may rebuild and repair any bridges, “without advertising for bids, but at a price not to exceed tbe last bid accepted by tbe board of county commissioners for like work.” If tbe board bad been thought to have a general authority to build and repair bridges, without advertising for bids, there was no occasion to make this provision for emergency cases. Tbe bridge in question is a new bridge, and was not constructed under tbe authority of § 1953. . It appears conclusively tbat tbe requirements of § 1951 have not been complied with, consequently tbe contract between tbe defendant and plaintiff, in so far as it affects tbe construction of tbe bridge in question, is illegal and void, and there can be no recovery thereunder. Tbe judgment of tbe District Court is affirmed.

Eobinson, T. I dissent.

Note. — On sufficiency of-specifications for guidance of bidder for public contract, see note in 30 L.R.A. (N.S.) 214.