61 Wash. 186 | Wash. | 1910
On January 20, 1908, the council of the city of Tacoma, by resolution, directed the commissioner of public works to have preliminary plans, specifications, and estimates prepared for the construction of certain bridges. Being prepared, they showed an estimated cost of $300,000. On March 24, 1909, an ordinance was passed, in pursuance of which a special election- was held, authorizing the issuance and sale of $300,000 of bonds to construct the proposed bridges. On January 10, 1910, the commissioner of public works advertised for bids. On February 14, 1910, he received nine sealed bids for one of the bridges, one bid from the Western Bridge Company for $44,100, and one from the plaintiff, C. F. Graff, for $47,495, all others being for larger sums. After consultation with the city attorney, the commissioner concluded the Western Bridge Company bid was defective ; that plaintiff had made the lowest regular bid, approved the latter, and endorsed an acceptance thereon. His clerk noted an award to plaintiff on his office record, and posted a five-days’ notice thereof. No further action was taken by the commissioner, nor was any contract executed with the plaintiff. Thereafter, and on March 2, 1910, the city council passed an ordinance whereby it declared the bid
The respondents have moved to dismiss the appeal because the controversy has ceased. In support of their motion they have shown that, since the entry of final judgment, the city has contracted with the Western Bridge Company, and that the bridge has been substantially constructed. On the authority of Green v. Okanogan County, 60 Wash. 309, 111 Pac. 226, this motion must be denied. We there said:
“It is true that when, pending an appeal from the judgment of the lower court, and without an}7 fault on the part of the respondent, an event occurs which renders it impossible to enter a judgment in favor of the appellant which will give any effectual relief, the court will not proceed to a formal judgment but will dismiss the appeal; and it is held, also, that the same result will follow if the intervening event is owing to some voluntary act of the appellant. But no such result follows merely because the respondent has changed the status of the subject-matter in litigation. So in this case, if it appears that the contract entered into was subject to be enjoined because in violation of the statutes, the court may now inquire into the subsequent acts of the respondents and compel them to undo what they have wrongfully done, in so far as it is capable of undoing, and to answer in damages for anything that cannot be undone.”
Appellant contends that, after his bid had been approved and an award had been made thereon by the commissioner of public works, he was entitled to his contract. Section 129 of the city charter provides that:
“Subject to the direction and control of the city council and the law and ordinances of the city, the commissioner shall have charge of and superintend all public works of the city,*189 and shall make such purchases of materials and supplies as may be authorized by ordinance or the city council; but he shall make no purchase of material or supplies of an amount or value in excess of five hundred dollars, except upon a written contract and after advertising for bids for furnishing such materials or supplies in the manner provided in sections 160,161, and 162 of this charter.”
Section 130 provides:
“He shall have special charge and control, subject to such ordinances as the city council may adopt, ... of streets . . . roads, bridges, etc. . . . and of the improvement and repair thereof . . . and of all public works and improvements that may hereafter be made by the city . . .”
Section 163, in part provides as follows:
“The commissioner of public works shall compare the bids with the record made by the clerk, and shall thereupon at said time, or at such other time, not exceeding ten days thereafter . . . award the contract to the lowest bidder, except as otherwise herein provided. Notice of such award shall forthwith be posted for five days by the clerk of the commissioner of public works in some conspicuous place in his office. He may reject any and all bids, and must reject the bid of any party who has been delinquent of unfaithful in any former contracts with the city, and all bids other than the lowest regular bid, and on accepting said lowest bid shall thereupon return to the proper parties the checks corresponding to the bids so rej ected. If all the bids are rej ected ... he shall return all the checks to the proper parties and again invite sealed proposals, as in the first instance.”
Appellant contends that, under these sections, the commissioner of public works had authority to award the contract to him; that the commissioner did so, and that he is now entitled to the benefits of his bid, award, and contract. It will be observed from a reading of §§ 129 and 130, supra, that the commissioner in the performance of his duties acts at all times subject to the direction and control of the council. These particular sections do not authorize him to contract for the construction of bridges, and thereby bind the city.
“Whenever the city council shall so require by ordinance or resolution, before any contract shall be entered into upon any award under this charter, the same shall be submitted to the city council for its approval and shall not take effect until so approved.”
The argument of the appellant is made upon the theory that all conditions precedent for awarding the contract to him had been fully performed by the commissioner, who he contends was vested with full authority. He insists that when the award had been made to him by the commissioner, the city council, if they desired to thereafter pass upon such award, could only do so by passing an ordinance or resolution directing the commissioner to submit the award and
The judgment is affirmed.
Rudkin, C. J., Dunbak, Moxbis, and Chadwick, JJ., concur.