188 F. 906 | 8th Cir. | 1911
On the 2d day of April, 1904, the city of Des Moines and the Welsbach Street Lighting Company entered into a written contract, by the terms of which said Welsbach Street Lighting- Company agreed to furnish to the city of Des Moines improved Welsbach street lights according to specifications stated for the term of 10 years from and after the 1st day of May, 1904. The Welsbach Street Lighting Company was to furnish and erect at its own cost and expense first-class iron posts and boulevard lanterns and keep the same in good repair, and to place t1 -eon
The city defended the action upon three grounds: (1) That the contract was invalid for the reason that it was entered into without first advertising for bids; (2) that it was invalid as there was in existence, at the time that the contract was entered into, an ordinance of the city of Des Moines, fixing rates which the city should pay for street lighting at a less sum than that agreed upon in the contract; and (3) that the contract in question was the grant of a franchise to the, Lighting Company which the city was not authorized to grant excepting upon a vote by the people.
A jury was waived and the cause tried to the court upon an agreed statement of facts and judgment rendered for plaintiff, from which judgment the city prosecutes error.
The several provisions of the statute (Code of 1897) claimed as applicable to a consideration of this case are the following:
“'See. 867. Bids. It shall advertise for bids and make all contracts on behalf of the city for all work, and for material and work for public improvements in excess of two hundred dollars, whenever the same shall be ordered by the council or voted for at any election. Proposals for bids shall be published once each week for two weeks in two of the daily newspapers therein, which shall be completed at least two weeks before the making of any contract. which proposals shall state the amount and kinds of material'to be furnished, the kind of, improvement, arid the time and conditions upon which bids will be received, all of which may be rejected. All contracts shall bo made with the lowest responsible bidder, but it shall not be necessary before proposals are published or bids received to determine specifically the kind of material to be used. All contracts made by said board shall be subject to the approval of the council.”
“Sec. 8(59. Superintend lighting. It shall advertise for bids and make contracts for the lighting of the streets, alleys, public grounds and buildings, and shall have entire control, management and direction of the lamps, lights, lighting material and persons charged with the care thereof.”
Manifestly the contract in question was not one of those contemplated in section 867 (City of Vincennes v. Citizens’ Gas Light Co.,
“An ordinance to fix the price of illuminating gas and to prescribe the conditions under which persons and corporations dealing in illuminating gas can occupy and use the streets and alleys of the city of Des Moines.”
The first section of the ordinance fixed the price of gas furnished to the inhabitants of the city. • The second section fixed the price for street lamps at $17 per year. This ordinance was amended in February, 1896, so as to constitute a contract with the Capital City Gaslight Company, and fixed the price which such company should charge to the inhabitants of the city, and also fixed the price for street lamps at $18 per year until the total number reached five hundred. After the total number reached 500, $17 per lamp per year. 'Section 6 of this amended ordinance contained this provision:
“7'bis amendment shall not t>e construed as conferring upon the Capital ■City Gaslight Company an exclusive right for any period of time to furnish gas to said city or to private consumers, nor to limit or restrain the city or such private consumers from purchasing gas from any other gas company •upon such terms as may be agreed upon or may be fixed by legal authority;*909 nor to limit tlie city of Des Moines from purchasing from any other company, person or persons, or from at any time constructing gas, electric light or any other works that may he adapted to the purpose, either in its own name or through the instrumentality of trustees, or in any other maimer, for the purpose of lighting its streets and of supplying the city and its citizens with light, fuel or power.”
While the original ordinance was general in its terms, by the amendment it was made to apply to its contract arrangement with the Capital City Gaslight Company, and expressly reserved to itself the right to contract in the future with other parties upon such terms as it could agree upon for the lighting of its streets. Hence such ordinance fixing the price at which the Capital City Gaslight Company sliould charge tor street lamps has no application to the contract under consideration. The city did not thereby disarm itself from subsequently entering into a new contract with other parties upon other and different terms.
The judgment is affirmed.