People ex rel. Putnam v. Commissioners of Buffalo County

4 Neb. 150 | Neb. | 1875

Lead Opinion

Maxwell, J.

A board of county commissioners are held to be a quasi corporation, a local organization which for purjioses of civil administration is invested with a few of the functions characteristic of a corporate existence. Commissioners of Hamilton County v. Mighels, 7 Ohio State, 115. A grant of powers to such a corporation must be strictly construed. Id., Treadwell v. Commissioners, 11 Id., 190. And in a recent case this court held that “ the grant of powers to such officers must be strictly construed, because when acting under special authority they must act strictly on the conditions under which the authority is given. They can only exercise such powers as are especially granted, or as are incidentally necessary for the purpose of carrying into effect such powers; and where the law prescribes the mode which they must pursue, in the exercise of these powers, it excludes all other modes of procedure.” The Sioux City and Pacific R. R. v. Washmgton County, etc., 3 Neb., 42.

Section 9 of Chap. XII, Revised Statutes, 1866, in force at the time this contract is alleged to have been entered into, provided for advertising for bids, for building a court house, jail, and offices for register of deeds and county clerk, the advertisement for bids to contain plans and specifications for such buildings, and the contract to be let to the lowest responsible bidder.

An act approved October 29,1858, provided the mode of locating, changing, or discontinuing county roads. Laws 1858, 229. Section four of the act supplemental to the same, approved January 11, 1860, provided that county commissioners “ may let contracts to the lowest and best bidder for the improvement of such roads as may be of general necessity, and pay for the same by" orders on the county road fund, but no contract shall be entered into for a greater sum than double the amount of the fund on hand at the time of letting the same.” Laws 1859, 51. In 1862 the law was again amended, and section sixteen as it now exists was adopted. Laws 1861-62, 80. In 1866, section fifteen was further amended to allow county commissioners to levy an additional cash tax for bridge purposes, not to exceed five mills on the dollar on the assessed valuation, for building and repairing permanent and substantial culverts and bridges, under the direction of the county commissioners. Revised Statutes 1S66, page 346.^*

The word “road” is generally applied to highways, a'nd as a generic term it includes highway, street, and lane. Webster Dic., 1144. A public bridge is a part of a road, and this without regard to its length or cost. It is a well known fact that a very large proportion of the expenditure necessary to be made by the several counties for the improvement of roads in this state, is required for the construction of bridges and their approaches, and we cannot presume that the legislature intended the law to apply to grading alone, and that bridges and their approaches should be excepted from the operation of the law.

The fund in this case is derived from precinct and county bonds placed under the control of the county commissioners of Buffalo county for the purpose of erecting a public bridge over the Platte river. In the expenditure of this fund, the commissioners should be governed by the same rules in letting the contract, that they would be in letting contracts for public bridges to be paid for out of tbe road fund. But it is contended that tbe provisions of the statute that the commissioners may let contracts to the lowest responsible bidder is simply permissive, and not mandatory. Judge Dillon says, “ the cases sustain the doctrine that what public corporations or officers are empowered to do for others, and which is beneficial to them to have done, the law holds they ought to do. * * * The power in such cases is conferred for the benefit of others and the intent of the legislature, which is the test in such cases, ordinarily seems, under such circumstances, to be, to impose a positive and absolute duty.” Dillon on Municipal Corporations, Sec. 62. Wherever a statute directs the doing of a thing for the sake of justice or the public good, the word may is the same as shall. Carth., 293. Salk., 609. Skin., 370.

In the case of The People, ex rel., v. Weston, Auditor, 3 Neb., 323, the rule is laid down that in the interpretation of statutes, “ the la\v is the best expositor of itself, that every part of it is to be taken into view for the purpose of discovering the mind of the lawgiver, that the details of one part may contain regulations and subject matter restricting the intent of general expressions or wrords in another part of the same law, and hence, that every part of the law is to be considered and the legislative intent is to be extracted from the whole of it.” But it is contended that the fund derived from the tax of five mills on the assessed valuation, to be expended under the direction of the county commissioners in the construction of bridges and culverts, is excepted from the operation of the law requiring contracts for the improvement of roads to be let to the lowest competent bidder, and that the law applies exclusively to contracts which are to be paid out of the road fund. It is only necessary to say that the amendment providing for a tax of five mills on the dollar, to be expended for bridges and culverts, took effect July 1, 1866, as an amendment to the road law, and the fund so provided is an additional road fund to be exclusively applied, however, in the erection and reparation of bridges and culverts. The money is to be expended under the direction of the county commissioners. A certain portion of the fund known distinctly as the road fund is apportioned among the several road districts, to be expended under the direction of the supervisors thereof; and the provision that the fund, raised by the tax of five mills for bridge purposes, should be expended under the direction of the county commissioners, is evidently intended to prevent any portion of that fund from being distributed to road supervisors for the use of their-respective districts. Taking the entire law together, we think it is very clear that the provision requiring contracts for opening and improving roads to be let to the lowest competent bidder, applies to all contracts of that kind, including contracts for the erection of bridges and culverts, they being a part of the road. So, from the necessity of the case, it follows, that plans and specifications must be adopted in advance as a basis on which bids may be received.

In this casé it appears from the evidence that the commissioners met in secret session, several miles away from the county seat, on the day preceding that for let-. ting the contract; that bids were there received, the commissioners requiring each bidder to furnish his own plans and specifications, they assuming to adopt such plans as they saw fit and to accept the bid accompanying the same. It also appears from the evidence that they met at the county seat for a short time on the day on which the contract was to be let, and accepted the highest bid made, that a bond was accepted by the commissioners for the completion of the contract, which is now claimed to be no security whatever, and thirty thousand dollars of the bonds of the precinct delivered to the contractor, without authority and before any part of the bridge had been erected; and that is now urged as a reason, in this court, why the King Company should be permitted to build the bridge in question, otherwise, it is claimed, the bonds will be lost to the precinct. No equities can be founded on the wrongful delivery of the bonds, even if they have passed into the hands of innocent purchasers, and the commissioners are individually liable for any wrongful application of the funds in their hands. Rut a contract made in defiance of law cannot be made valid by an attempted payment of the consideration in advance.

There is no doubt of the right of the lowest responsible bidder, or of a taxpayer of the proper county in a proper case, to maintain an action of this kind, and in no other way can the rights of bidders, and the public, be fully secured and enforced. In the-case of Boren & Guckes v. Comr’s of Darke Co., 21 Ohio State, 323, the court held: “The power conferred by the statute was to award the contract to the lowest bidder; this they have not done, and the power to do this remains to be exercised by them. To hold that an unauthorized award of the contract exhausted their power to make the only award and contract they were authorized to make, would afford another easy mode by which the commissioners might nullify the statute.” To permit commissioners to accept plans and. bids thereon at the same time, they accepting such as they approve, prevents all competition and opens the, door to corruption, favoritism and fraud, and is against the policy of the law. Boren v. Comr’s, 21 Ohio State, 323. The estimated cost of this bridge is at least fifty thousand dollars. Is it not remarkable that plans and specifications were not prepared in advance, and bids invited thereon? There being no basis on which bids could be received no valid contract can be founded thereon; therefore the contract made by the county commissioners with the King Bridge Company is void, and there being no valid contract with the King Company, none can be awarded to Clark.

* Same section now in force. Gen. Stat., 953, 954. Ante p. 154.

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Concurrence Opinion

Mr. Justice Gantt

concurred in the foregoing opinion. Chief Justice Lake concurred in the judgment denying the writ, but dissented from the views taken by the majority of the court upon the construction of the statute, and filed the following opinion.

Lake, Ch. J.

"While I am clearly of the opinion that the prayer of the relators must be denied, it is impossible for me to give my assent to several • of the propositions advanced by a majority of the court. I will therefore, very briefly, give the reasons why, in my opinion, this writ should be withheld.

From the pleadings and testimony, it appears that the commissioners of Buffalo county, being desirous to construct a wagon bridge across the Platte river, invited proposals therefor without having previously determined ■the precise kind or description of bridge they would have, leaving it to the respective bidders to furnish, together with their bids, plans and specifications of their own, from which the commissioners would select the one, which under all the circumstances they should consider the best. On the 29th day of July, 1873, bids were made by the King Wrought Iron Bridge Company and by Henry T. Clarke, respectively, upon substantially the same general plan, but differing in the details so widely as to leave it quite doubtful, and difficult to determine, which one would, in fact, prove to be the more desirable, or valuable to the county, in case it were adopted.

The bid of the King Wrought Iron Bridge Company was for thirteen dollars per lineal foot, payable in the bonds of Kearney precinct, which it seems had been voted for this purpose, while that of Clarke was for eight dollars and seventy-five cents per lineal foot, but payable in money. Subsequently, however, on the same day, Clarke offered to take the bonds in payment at eighty cents on the dollar, which made his bid the lowest, provided his bridge were equally as good as that of his competitor. "Without very much reflection, apparently, and in exceeding great haste, the bid and plans of the King Wrought Iron Bridge Company were accepted by the commissioners, the contract in question entered into, and the bonds of said precinct actually delivered in payment before a single blow towards the construction-of the bridge had been struck. But, notwithstanding the fact that the testimony shows, very satisfactorily to my mind, that the course pursued in this instance by the commissioners was not at all calculated to promote the best interests of the people, yet I do not think such a case is made out as calls for, or would at all justify, the application of the corrective which is here sought.

In my opinion, the radical difficulty in respect of the control of county commissioners in the erection of bridges lies in the almost unlimited discretion with which our statutes vest them in dealing with this subject. And it is in this particular, that I find myself wholly unable to agree with my associates. In many of the states we find ample provision made by statute for the guidance and control of officers intrusted with the erection of public buildings, bridges, and the like, by which they must advertise for a certain time, and in a certain manner, for bids to do the work according to plan's and specifications previously agreed upon. But, in respect of bridges, especially, we have no similar statute in this state; the whole matter is left to the wisdom and sound discretion of the commissioners of the several counties; which discretion, so long as exercised in good faith, is entirely beyond the reach or control of any authority whatsoever. ” But, while this is true, it by no means follows, if it be clearly shown that the commissioners are proceeding corruptly in the exercise of such discretion, to the prejudice of the public interests, or of individual rights, that they may not be enjoined by the courts, or compelled to answer in damages for their malfeasance.

In the opinion of my associates, section 16, chap. 67, General Statutes, requires that contracts for the erection of permanent bridges within a county, shall be let to “the lowest competent bidder” and that this necessitates the previous procurement of plans and specifications to which all bids must conform. I do not so understand this provision. It is clear to my mind that this section has reference -solely to such work, grading, turnpiking, and the like, which may be paid for out of the county road fund proper, and not to those expensive, permanent bridges, referred to in the last proviso of the preceding section, which are to be built “under the direction of the county commissioners,” and paid for out of a fund raised especially for that purpose, as in said section provided.

There is another consideration that, in my opinion, ought to have much weight in the determination of this particular question, and lead this court to hesitate long before announcing the conclusion that all contracts for permanent bridges must be let to the lowest bidder. It is a fact of common notoriety that most, if not all, of the very best bridges are patented, and can only be built by the respective patentees, or the person who has purchased the right for the particular state or territory. In such case it is clear that there can be no competition as to the building of a bridge of any one particular patent; and it would be an act of folly for the commissioners to announce that they had settled upon a structure which only a single individual, or company had the right to build, and then to advertise for proposals, in the expectation of competition, for its erection. The • only sensible course to pursue in such case would be the one ostensibly taken by these commissioners, to invite competition bétween the owners of the most valuable patents, leaving the selection to be made after due consideration of their respective merits, as well as the cost of each. This I believe to be the course that a prudent, careful man would take, in such case, if the matter concerned him alone, and I can see nothing in our statutes which ought to prevent the commissioners of a county from acting in like manner, in behalf of the public.

On the argument of the case, no question was raised, either as to the legality of the fund out oUwhich payment was to be made for the bridge, or as to the right of the commissioners to deal with it. But, notwithstanding this fact, I cannot forbear -the suggestion that the authority of, Kearney" precinct to issue these bonds, to my mind is not altogether clear, and may admit of very serious doubt. Should it be here adjudged that these bonds were issued without authority, ‘it would of course be fatal to the claim of the relators. Inasmuch, however, as I am satisfied, that for other reasons, already stated, the writ must be denied, and for the further reason that no argument - has been heard thereon, I forbear the expression of an opinion on this point, at this time.

For the reason therefore, that under our statutes the duties of county commissioners in the building of permanent bridges, are chiefly of a judicial, or discretionary character, especially so of the particular kind of structure they will have, I do not think this court has any authority to compel them to adopt Clarke’s plan, or any other definite description of bridge, but that in this matter they should be left to the exercise of their own judgment entirely.

For these reasons, I concur in the opinion, that the peremptory writ must be withheld, and the case dismissed at the cost of the relators.

"Writ denied.