211 Ill. 24 | Ill. | 1904
delivered the opinion of the court:
The city of Chicago is incorporated under “An act to provide for the incorporation of cities and villages,” approved April 10, 1872, and the position of appellee is, that the city, by virtue of section 50 of article 9 of said act, which reads as follows: “All contracts for the making of any public improvement, to be paid for in whole or in part by a special assessment, and any work or other public improvement, when the expense thereof shall exceed |500, shall be let to the lowest responsible bidder, in the manner to be prescribed by ordinance,'—such contract to be approved by the mayor or president of the board of trustees: Provided, however, any such contract may be entered into by the proper officer without advertising for bids, and without such approval, by a vote of two-thirds of all the aldermen or trustees elected,”—is prohibited from completing said work except by contract let, after advertising for bids, to the lowest responsible bidder.
It is first contended by the appellants that said section 50 does not apply to contracts for public improvements unless said improvements are to be paid for, in whole or in part, by special assessment. The section of the statute above quoted not only provides that all contracts for the making of any public improvement to be paid for, in whole or in part, by a special assessment, where the expense thereof shall exceed $500, shall be let to the lowest responsible bidder after advertising for bids, but it also provides that “any work or other public improvement, when the expense thereof shall exceed $500, shall be let to the lowest responsible bidder” after advertising for bids, clearly showing that the legislature had in mind a public work or improvement which might be paid for by a fund derived from a source other than that of a special assessment, as well as an improvement which was to be paid for by a special assessment. The language used is so clear and specific as not to admit of construction. The fact that section 50 is found in article 9 of the City and Village act, which article is given the sub-title “Special assessment for local improvements,” is unimportant. The provision is general, and the language, “any work or other public improvement,” must be held to include all work or other public improvement, whether the same is to be paid for from funds raised by special assessment, general taxation or other public funds, as in this case from the water fund.
It is next contended, that even though it be conceded that if a contract for a public improvement be let by the city it must be to the lowest responsible bidder after advertising for bids, still, it is said, the city had a discretion whether it would complete the work by contract or do the work by day labor, and if it determined to do the work by day labor no public letting was necessary. The language of the section is, “any work or other public improvement, when the expense thereof shall exceed $500, shall be let to the lowest responsible bidder.” No discretion is thereby conferred upon the city or any of its officers as to whether the work or improvement shall be constructed under contract or by day labor, but it is clear if the work or other public improvement will exceed in cost the sum of $500 it must be let to the lowest responsible bidder after advertising for bids.
It is further contended that said section 50 should not be held to apply to unfinished work, where a valid contract had been let and the contractor had abandoned the work. We find no authority for reading into said section an exception to the effect that where a valid contract has been let after advertising for bids, and the contractor has abandoned the work, the city may complete the work by day labor, where the cost of the unfinished work will exceed the sum of $500. The authorities relied upon by the appellants to sustain their position we are of the opinion are not in point. They are cases where the improvement had been completed and accepted by the municipality and an action had been brought against the city for the value thereof) or they arose under statutory provisions which were different from the provisions of the statute in force in this State. To hold that the statute does not apply to an unfinished public improvement after the work has been abandoned by the contractor would be to permit contracts for public improvements to be let to irresponsible parties, which, when abandoned after some portion of the work had been done, would open wide the door to fraud and destroy competition, and enable city officials to do indirectly what in express terms they are prohibited from doing by the statute. The • object of the statute is to require the municipalities of this State to advertise for bids upon, any work or other public improvement which they propose to construct, and to let the same to the lowest responsible bidder. The statute is in general terms and applies to all public improvements where the costs exceed $500, and the fact that a contract for the improvement had once been let and the work abandoned before completion, if the cost of completing the same will exceed the sum of $500, does not authorize the municipality to complete the improvement by day labor, but a contract for its completion must be let to the lowest responsible bidder after an advertisement for bids. To hold otherwise would be to nullify the statute.
It is further contended that section 50 is repealed by “An act concerning local improvements,” approved June 14, 1897. In disposing- of this question the Appellate Court used the following language, with which we agree: “The act of 1897 is not a revision of the whole subject of the act of 1872, nor is it intended as a substitute for that act; neither is it a revision of the whole subject of -article 9 of the act of 1872. The act of 1897, as admitted by appellants’ counsel, relates exclusively to local improvements, or such as enhance the value of property adjacent to them, while the language of section 50, article 9, of the act of 1872, ‘any work or other public improvement, ’ includes work and improvements not merely local, but such that the benefits thereof are diffused throughout the municipality. Repeals by implication are not favored, and it cannot reasonably be said that a statute relating exclusively to local improvements can, by implication, repeal a provision in a former statute including work and improvements not local.”
It is also urged that to give said section 50 the construction contended for by appellee would be to so far embarrass the municipalities of this State in making public improvements, when such municipalities are indebted above the five per cent constitutional limit, as to render said section 50 unconstitutional and void. Said section provides that a contract for any work or other public improvement, upon a two-thirds vote of all the aldermen or trustees, may be entered into by the proper officer of a city or village without advertising for bids and without the approval of the mayor or president of the board of trustees. This proviso was doubtless passed to enable cities and villages to make contracts for public improvements without advertising for bids and without the approval of the mayor or president of the board of trustees in cases of emergency, and the powers therein contained are broad enough to authorize them to pay for the improvement as the work progresses, which fact entirely removes the objection urged by the appellants to the constitutionality of said section 50. The fact that the emergency might not be of so serious a character as to induce the requisite number of aldermen or trustees to vote to authorize a contract to be made for a public improvement without advertising for bids or without the approval of the mayor or president of the board of trustees, and to pay for the improvement as the work progressed, would be no sufficient reason to authorize the courts to hold that such municipalities had the power to make contracts not only not authorized by the statute, but by the express provisions of the statute prohibited.
From an examination of the questions here presented for determination the conclusion has been reached that the ordinance of December 16, 1901, authorizing the work of completing said improvement to be done by day labor, was passed by the city council without authority of law and that said ordinance is void, and that the injunction restraining the city and its officers from proceeding to complete the work under the terms of said void ordinance was properly granted by the superior court.
The judgment of the Appellate Court will therefore be affirmed.
_ Judgment affirmed.