150 N.W. 772 | S.D. | 1915
The city of Sioux Falls having, through its proper officers, entered into a contract for the paving of part of one of its streets, plaintiff, who owned property adjacent thereto,
Sioux Falls is a city under commission, and section 1303, P. C.; as amended by chapter 95, Laws 1911, and chapter 126, Laws 1913, provides that, when the board of commissioners of a city under commission shall deem it necessary to. pave any street, “it shall in1 a proposed resolution • declare the necessity of such improvement and 'shall give therein a description of the proposed improvement, * * *” and shall fix a time and place when said resolution will be proposed for adoption. Such statute also provides that such resolution, together with a notice of -time and place, when same shall be proposed for adoption, shall be published; that ,at the time and place fixed, obijections shall be considered to the proposed resolution, which resolution can either toe rejected, adopted as proposed, or amended and adopted; that the board! shall then wait 20 days, and unless the referendum is invoked, or unless a written protest shall have been filed, signed by the owners of more than 65 per cent, of the frontage of said property liable to assessment by the adoption of such resolution, such board shall have power to cause such improvement to be made and too contract therefor; and that all work done “shall be let by contract to the lowest responsible bidder therefor.” The proposed resolution announced that the ■street should — “be paved with one of the following pavements, to-wit, granite block, creosoted wood block, asphaltic concrete, bitulithic, Portland cement, concrete or d'olarway, and that the same be paved and the work done and performed in accordance with 'the plans and' specifications for paving.”
And that:
“Separate plans and specifications for each of the above described pavements are now on file in the office of the city engineer of the city of Sioux Falls, and have heretofore been adopted by the board of commissioners of the city of Sioux Falls, which plans and specifications may be inspected by any and all persons interested therein or affected thereby.”
No question is raised as to the sufficiency of the specifications ■that had been adopted for each kind of pavement, and there is no ground for contention but that the proposed resolution, referring, as it does, to such specifications (City of Connersville v. Merrill, 14 Ind. App. 303, 42 N. E. 1112; Chase v. Trout, 146 Cal. 350, 80 Pac. 81; Whittaker v. Deadwood, 23 S. D. 538, 122 N. W. 590, 139 Am. St. Rep. 1076), and all following proceedings, would have been valid, provided such resolution had named hut one kind of .paving material, and' provided the notice for (bids and the bids had been confined to a pavement to be construoted of the one kind1 of material; but appellant contends “that it is not a compliance with the statute to describe the improvement to -be made in the alternative.”
Appellant says:
“Under .the' provisions of the South Dakota statute, the property owners along the line of any proposed improvement have the right to protest out the improvement, and the abject of the resolution is to apprise them of what the proposed improvement consists, so as to give them the opportunity to exercise ■their right of protest, if they desire to do so. The statute requires that the resolution shall contain ‘a description of the proposed improvement/ and. it is certainly no ‘description’ when the pavement proposed is in the alternative of six different kinds of pavement, varying greatly both in price, quality, and adaptability for traffic purposes. Under the statute, 65 per cent, of the property owners are required to protest out a proposed improvement. If a resolution were adopted calling for a single form of paving, the property owners would then have a single proposition submitted to them, and, if the requisite percentage did not favor that form of pavement, it could be protested out and a resolution*84 adopted for some other form of pavement which would not be objected to by 65 per cent, of the property owners. When, however, there are in one and the same resolution six different forms of pavement presented in the alternative, each property owner is deprived of his right to protest against any form of paving which he may not favor and it is left' to- the city commission to decide in 'favor of a pavement according to 'the whims of the 'commissioners, regardless of the fact that the pavement selected may be favored by only a small percentage of the property owners.”
If it is true that -the naming of several materials in the alternative in such resolution does prevent the property owners from entering an intelligent and effective protest, then there is merit in appellant’9 contention. We are, however, of the opinion that the naming of several materials in such resolution- — provided there are o-n file ample specifications relating to each, of such materials — ten-d-s to promote intelligent and effective action on the part of the property owners, ten-ds to expedite final determination of the wishes of the property owners, and tends to- produce the greatest possible competition among those bidding for the work.
It is a well-known fact that some paving materials are ■patented. It seem-s clear to us that if the resolution named only one material f-o-r pavement, and that a patented one, the possibility of competitive bidding would be entirely eliminated; in such case, if the patented material was one which could not be purchased in the -o-pen market, it is at least doubtful whether the resolution would! be valid (Fineran v. Central Bitulithic Paving Co., 116 Ky. 505, 76 S. W. 415, 3 Ann. Cas. 741; State of New Jersey v. City of Elizabeth, 35 N. J. Law, 351; Fishburn v. Chicago, 171 Ill. 338, 49 N. E. 542, 39 L. R. A. 482, 63 Am. St. Rep. 236), though s-uc-h resolution, -even though it named on-e material only — provided such material could be -procured or manufactured by any one or, if a patented article, could -be purchased o-n the open market — would unquestionably be valid (Parker v. Philadelphia, 220 Pa. 208, 69 Atl. 670). While we are of the opinion that competition might ordinarily be obtained where but one material is proposed, provided such material be one free from monopolistic -control, yet we are fully satisfied that competition, such as was in the minds of those who enacted
‘•The end desired was (is) a single one,’ and one which could (can) be reached by various means. The cheapest and best means to reach -that end must - be to open the door to- competition between the means.”
In Attorney General v. Detroit, 26 Mich. 263, Judge Christiancy said:
“When -the pavement of a street is in contemplation, there are two kinds of competition which it is very desirable to create among those who may wish to undertake the work: first, that between the different kinds of pavement, or those prepared to engage in putting them down; and, second, that between parties prepared to put down the same kind. It is the latter species of competition only which the charter requires the city officers to take measures to secure. * * * There is1 nothing, however, in the charter, which prevents the city from availing itself, also, of the benefit of The other species of competition, that growing out of the different kind's of pavement seeking the public favor and adoption. And as the relative cost and value of the respective kinds would form a legitimate element of consideration- with the council, in determining which kind to adopt for any particular street, a just regard for the public interest would certainly warrant, i-f it does not require, some effort to secure this s-pecies of competition, as well as -that for any particular kind.”
We have this situation: If we hold that the provision requiring the resolution to contain “a description of the proposed improvement” forbids the stating of two or more proposed materials in -the alternative, then we must either follow those courts which hold invalid a resolution which names but one material, and that a kind not the subject of competitive bidding, or else we must, in favor of monopolistic material, hold that the -provision that the work “shall be let by contract to the lowest responsible bidder” may be disregarded. We think that construction of section 1303, supra, to be the more sound and supported by the better line of reasoning, _ which will, under no circumstances, either render inoperative an integral and important part
“If the purpose * * * is to secure competition in- work or supplies for the .public, -something is necessarily left to the discretion of the council; and they must determine in each case what competition the nature of the case will admit of, and what is the best method to secure it.”
N-o claim is made but what the 'property owner could, from the resolution and specifications on -file and adopted, procure a full description of the improvement as it would be if made from any one of the materials proposed. Det us note what would be the practical workings of such a resolution-. The property owner, who might favor the .paving of the street, but who was opposed to the use o-f one or more of the pavements -proposed, would not be driven to a general pro-test, but need only protest against the particular material or materials to which he was opposed. Thus the proposing of several materials in the alternative would tend to expedite the ascertainment by the commissioners of the exact wishes of such property holder. The .property owner being permitted to protest against one or more materials while favoring the improvement itself, where a majority favored the improvement there would almost invariably be some one or m-ore materials against, which the owners of 65 per cent, of property
We approve the following from the case of Mayor of City of Baltimore v. Gahan, 104 Md. 145, 64 Atl. 716:
“It may !be further answered that the assumption that the * * * ordinance does not select the material to be used is not well founded, since the ordinance adopts three, and no other than one of the three can be employed, and the one which is chosen is in fact one which has been antecedently named by the city council. Of course, such a procedure is very far from being tantamount to the adoption of an ordinance which embodies a broad and unrestricted * * * power to select, according to its own judgment, any material it may ohoose for a pavement.”
We also quote with approval the following from the case of Jacksonville Ry. Co. v. City of Jacksonville, 114 Ill. 562, 2 N. E. 478:
“Where, then, is the uncertainty in the ordinance complained of? Do counsel wish to be understood as holding that any ordinance' which gives the municipality or contractor an election as to which of two or more kinds of material equally suitable for a proposed improvement may be used is necessarily void for that reason? * * * We have no hesitancy in holding that such a construction of the statute would be exceedingly narrow and wholly unwarranted by the words of the act. In many cases, we have no doubt, it would materially embarrass municipal authorities in making such improvements, by confining them to' a ■particular kind of material, when other equally good material of the same general class might be had on as favorable or better terms, if an election were given.”
“Whát difference is there, or can there be — looking solely to the exteiit of that authority — (between selecting the kind of pavement befóte bids are asked for arid selecting the kind of pavement after the bids have been received arid opened, upon distinct sets of specifications descriptive of wholly different kinds of pavements, but all of which are suited to the same general purpose? Manifestly, nti-rie whatever, though in some particulars, not touching the power itself, but affecting the ultimate result in other ways, there may be a difference between the two methods. Thus by the selection of the materials, or the kind of pavement, after the bids have been received, combinations between bidders to inflate .prices may be in a great measure avoided, since it is altogether improbable that parties who compete for the adoption of their respective materials will all ask exorbitant prices, as each party will, most likely, strive, by depressing prices, to secure the contract.”
“Sec. 1333. Whenever the city council of any city shall deem it necessary to grade, pave or macadamize any street, avenue or alley, and have taken- all the steps- prescribed- in the preceding article in relation thereto, and so provided by -an ordinance passed by two-thirds of all -the aldermen elect, -they may divide the amount of the special assessment therefor into installments, the first of which shall, not exceed twenty per cent, of the total of said assessment, which shall be due and payable from and after the -filing of the assessment roll with the city treasurer.”
“S-ec. 1337. Any city desiring to make the collection of any such special assessment as aforesaid by installments, the -ordinance providing for said improvements shall also state that the same shall be collected by installments- and fix the amount of the first installment.”
Appellant contends that the resolution was iiivalid because
The order appealed from is affirmed.