72 Neb. 595 | Neb. | 1904
The Nebraska Bitulithic Company, in the spring of 1904, entered into a contract with the city of Omaha to repair its asphalt pavements. The company proceeded with the work, and partially completed the repairs. By the terms of the contract, it was provided that payments should be made on estimates of the city engineer from time to time, and in such amounts as might be found due by such estimates. One estimate was made and the amount due thereunder paid, but when the second estimate was reported by the engineer to the board of public works, and by that body to the mayor and city council; Charles E. Fanning,
“Before any claim against the city, except officers’ salaries and interest on the public debt, is allowed, the claimant or his agent or attorney shall verify the same by his affidavit, stating that the several items therein mentioned are just and true and the services charged therein, or articles furnished, as the case may be, were rendered or furnished as therein charged and that the amount therein charged and claimed is due and unpaid, allowing all just credits, and the city comptroller and his deputy shall have authority to administer oaths and affirmations in all matters required by this section. All claims against the city or water board must be filed with the city comptroller. And when the claim of any person against the city is disallowed, in whole or in part, by the city council op water board, such person may appeal from the decision*597 of the said city council or water board to the district court of the same county by causing a written notice to be served upon the city comptroller of said city, within twenty (20) days after making such decision, and executing a bond to such city, with sufficient surety, to be approved by the city comptroller, conditioned for the faithful prosecution of such appeal, and the payment of all costs that shall be adjuged against the appellant. Upon the disallowance of any claim, it shall be the duty of the city comptroller of said city to notify the claimant, his agent or attorney, in writing, of the fact within five (5) days after such dis-allowance. * * * Any taxpayer may likewise appeal from the allowance of any claim against the city or water board by serving a like notice on the city comptroller within twenty days and giving a bond similar to that provided for in this section.”
The relators contend that the section above quoted has no application to cases like the one at bar. In other words, that the estimate on which the allowance was made was not a claim within the meaning of said section. We find ourselves unable to assent to this proposition. The law is broad and sweeping in its terms, and was evidently intended to include all claims of every kind and nature requiring for their payment the withdrawal of money from the city treasury, except, of course, officers’ salaries, interest on the public debt, and claims for torts, which are presented and prosecuted in a different manner. Its purpose was to safeguard the public funds, and by an easy and inexpensive method enable a taxpayer to prevent fraud and extravagance in conducting the business of the city. It seems clear that it was intended to apply to claims due on contract work, as well as all other demands against the municipality, and should receive such judicial interpretation and construction as will render it effectual for that purpose. We are unable to distinguish any difference between a claim made by a contractor on an estimate of the city engineer for a partial compliance with his contract, and any other contract claim against the city. Sec
“It shall be the duty of such board of public works and it shall have power to make contracts on behalf of the city for the performance of all such works and the erection of such improvements as may be ordered by the mayor and council, but only with the approval of the mayor and council. * * * It shall also be the.duty of said board to approve the estimates of the city engineer, which may be made from time to time, of the public work, as the same may progress; to accept any work or improvement made when the same shall be fully completed according to contract, subject, however, to the approval of the mayor and council.”
With reference to the duties of the city engineer, it is provided in section 93 of the charter, as follows :
“He shall make all necessary surveys, plans, specifications and estimates, of all public works of the city and their maintenance and repairs. The city engineer shall make all temporary and final estimates of public works under contract, and report the same to the board of public works, who shall submit the same to the mayor and council with their recommendation.”
Under the provisions of section 94 of the charter, it is also made the duty of the city engineer to inspect public work, and, if found to be properly done, to accept the same and forthwith report his acceptance to the board of public works, and, when the contract so provides, he may accept such work in sections. But in every case he must report his acceptance to the board of public Avorks, which, in turn, reports the same to the mayor and city council for final approval and acceptance. So it is clear that no payment can be made for any public work until the claim therefor has been allowed by the-city council, and approved by the mayor, and the amount thus found thereby due is ordered paid. The amount due on an estimate is as much a claim as an amount due on a contract without an esti
“It is urged that relator has presented no claim to the city council for their action, that it never submitted to the jurisdiction of that body, and is noAv being forced into court without its consent. It appears from the record that, after the relator had partly performed its contract, some officer representing it requested the proper city authorities to make an estimate of the amount of work performed. The request Avas complied with and estimate made, which was thereafter presented to the council for their action. It was allowed by the council, and relator demanded of the city clerk the issuance of an order on the city treasurer for the amount. That relator occupied the position of a claimant with a claim against the city, there can be no serious doubt. It asserted a claim under the contract for the amount claimed to be due, and the city council duly allowed it. If anything further is essential to constitute a claim Avithin the meaning of the charter, Ave are unable to point it out.”
It is contended, however, that, because the relator did not verify the estimate in question by affidavit, stating “that the items therein alleged are just and true, and the services charged therein, or articles furnished, as the case may be, were rendered or furnished as therein charged, and that the amount therein charged and claimed is due and unpaid, alloAving all just debts and credits,” the claim Avas not included Avithin the provisions of section 33, above quoted. We do not so understand it. The allowance of the estimate by the city council, and the approval of the mayor, was required before a warrant could be drawn for its payment, and it is our opinion that such estimate, Avhen presented, should have been accompanied by the verification of the relator, as set forth above. The mere fact that it had been the custom to disregard this charter provision Avhen such estimates were presented does not
It is therefore our opinion that the estimate in question was a claim within the meaning of section 33 of the city charter, and that the taxpayer had a right to appeal from the approval and alio Avance thereof by the city council to the district court. It appears that an .appeal was duly perfected. The effect of the appeal was to at least suspend the order of the board during its pendency, and while the case was pending and undisposed of in the district court mandamus Avould not lie to compel the delivery of the warrant.
Reversed.
