10 Colo. App. 99 | Colo. Ct. App. | 1897
delivered the opinion of the court.
On the 16th day of March, 1896, the following petition was presented to the board of public works of the city of Denver:
“ PETITION FOR PAVING ON PENNSYLVANIA AVENUE.
“To the Honorable Board of Public Works and City Council of the City of Denver:
“ The undersigned, your petitioners, owners of the frontage of lots and tracks of land described opposite their respective names, hereby, in pursuance of the charter of the city of Denver, passed by the ninth general assembly of the state of Colorado, respectfully petition your honorable bodies for the grading, paving and curbing of Pennsylvania avenue, including intersections, from the north line of Eighth avenue to the south line of Twelfth avenue, in the city of Denver. The wearing surface of the pavement to be
This petition purported to be signed by the owners of a majority of the frontage on Pennsylvania avenue, between the north line of Eighth avenue, and the south line of Twelfth avenue. Upon the presentation of the petition, the board of public works, at a meeting duly called and held, acted upon the petition, and made and entered the following order in respect thereto:
“ First: That the right of petition of the owners of a majority of the frontage to be assessed for any particular material for the wearing surface, is not paramount to, but subject to, the charter provisions of the same clause requiring genuine competition between contractors, so that there can be at least two or more bids by individuals or companies in no manner connected with each other; and this petition is so specific as to render compliance with that part of the charter doubtful, in the mind of the board (although as to that matter this board has had no hearing or evidence), so that it does not feel warranted in putting the city to the expense of making preliminary surveys, and preparing specifications, which would necessitate a fruitless expenditure of the city’s' money, in case it turned out that in specifying said Trinidad Lake Asphalt as a wearing surface, there could not be genuine competition between contractors by at least two or more bids, as required by the charter.
“Resolved, That while said petition is sufficient in all other respects, and the public necessity requires that said street should be paved, nevertheless, for said reasons and no other, that, until this question be otherwise determined by some binding judicial decision of the courts of this state, the petition be denied.”
Thereupon the appellant, one of the petitioners, for him-. self, and on behalf of the others, instituted this proceeding, praying for a writ of mandamus commanding the board to accept and entertain the petition, and to proceed with the improvement of the portion of Pennsylvania avenue which it described, in manner and form as by the charter of the • city of Denver provided.
The respondent demurred to the petition for a mandamus, on the ground that it did not state facts sufficient to constitute a cause of action against it, or to warrant the court in granting the relief prayed for. The demurrer was sustained and judgment rendered in favor of the respondent, from which error is prosecuted to this court.
The argument has taken a wide range, but we do not deem it necessary for us to follow it in all its ramifications. Upon the record before us, we think that the determination of a few questions, will dispose of the case in this court. The general authority of the board of public works, in the matter of public improvements, in so far as any question concerning it is involved in tins record, is conferred by section 35, article 3 of the charter of the city of Denver, and is expressed as follows : “ The board of public works shall have exclusive management and control of the construction, reconstruction and maintenance of all public and local improvements, including the grading, paving, curbing or otherwise improving of
The section specifically defining their duties in relation to the improvement of streets, in so far as they affect any question before us, are as follows :
“Article YII.
“public improvements.
“ Section 1. The city shall have power to contract for and make local improvements, and to assess the cost thereof wholly or in part upon the property specially benefited, as hereinafter provided; all contracts for public improvements shall be awarded by the mayor, upon the recommendation of the board of public works, and the improvements shall be constructed by and under the direction of said board, in accordance with specifications prescribed by said board. In all cases when the cost of local improvements is to be assessed wholly or in part upon the property benefited, the same shall be constructed by independent contract or contracts; but other public improvements may be constructed by day’s labor under the direction of the board.
“ Sec. 2. Whenever the board of public works shall by resolution, order any of the local improvements herein mentioned, the same shall be authorized by ordinance; which ordinance shall be in form recommended by the board of public works by indorsement thereon, and shall not be subject to amendment by the city council.
“ Sec. 3. The board of public works may order the grading, curbing and paving, or otherwise improving, of the whole or any part or parts of any street or streets, alley or alleys or streets and alleys in the city of Denver, or any one or more of the said improvements. In case of grading only, or of grading and curbing only, the improvements may include the necessary cross walks; and the board may thereafter, under the conditions herein prescribed, do such further grading as may be necessary in paving or otherwise improving the same area; Provided,
“ Second. Theffioard shall by advertisement for twenty days in two daily newspapers of general circulation, published in the city of Denver, give notice to the owners of the real estate'in the district, of the kind of improvements proposed, the number of instalments and time in which the costs will be payable, the rate of interest on unpaid instalments, the extent of the district to be assessed, the probable cost as shown by the estimates of the engineer, and the time, not less than thirty days after the first publication, when a resolution ordering the improvements will be considered by said board; that said map and estimates and all resolutions and proceedings of the board in the premises are on file, and can be seen and examined at the office of the board during business hours, at any time within said period of thirty days, by. any person interested; and that all complaints and objections that may be made in writing concerning the proposed improvements, by the owners of any real estate to be assessed, will be heard and determined by the board before final action of the board thereon.
“ Third,. If owners of a majority of the frontage to be assessed, shall petition for paving, and for any particular materials for the wearing surface, then the improvements shall be ordered, and the material so designed shall be used; but no paving .shall be ordered unless a petition for the same is.
The order of procedure by the board in carrying into effect the foregoing1 provisions, is the subject of some contention. The learned gentlemen who appear specially as advisors of the court, insist that it is the duty of the board, in anticipation of petitions for paving, to comply with the requirements contained in the first and second subdivisions of section 3. In their view, until the paving districts have been created, the specifications adopted, the number of instalments, and the time of their payment, fixed, the estimates made, and the notice given, petitions for paving are premature, and cannot be entertained. If this position is correct, as the petition for a mandamus does not allege the performance by the board of any of those requirements, the demurrer was properly sustained. But to our minds such a construction of section 3 is not only unwarranted by its language, but would be productive of inconsistent and illogical situations. In the matter of providing for improvements upon streets, the board of public works moves itself, or it is moved from the outside. All improvements, except paving, are initiated by the board. But in the matter of paving it is powerless until a legal petition for the purpose has been presented. The second subdivision of section 3 providés that the notice by advertisement of the several matters which the board are required by the next preceding subdivision to resolve upon and determine, shall specify the kind of improvement proposed. This language contemplates a proposal for the improvements, previous to any action by the board; and that the board must act upon a proposition either originating with itself, or submitted by others seems to be a necessary conclusion from the nature of the duties which are
The point we have been considering is not made by counsel for the respondents. The objection which they urge and elaborate is the same one against which the board stumbled, and to that we shall now give our attention. Before proceeding to a consideration of this objection a few observations on the nature of the remedy by mandamus seems necessary, as explanatory of what we may say concerning the duties of the board. Mandamus will not lie to control the exercise of discretionary powers with which public officers may be invested; and if the denial of the petition for paving was the result of the exercise by the board of a judgment and discretion with which it was instructed by law, the judgment of the district .court is unassailable. High on Extraordinary Remedies, § 42. The charter having confided to the board of the public works the exclusive management and control of the construction and maintenance of all public improvements, necessarily, in determining upon the improvements, their location, extent and character, it is clothed with some discretionary authority. What the limits of that authority are, wherein an exercise of its own judgment is contemplated, and wherein not, it is unnecessary for the purposes of this case to decide. But where any tribunal in which discretionary power is lodged, has exercised its discretion so far as the exercise is necessary in a particular case, and has given its conclusions upon the facts before it, what remains to he done to make its conclusions effective, is purely ministerial, and mandamus will lie to compel its performance. Williams v. Saunders, 5 Cold. 60; State v. Cox, 26 Minn. 214; Cortleyou v. Ten Eyck, 22 N. J. L. 45; State v. Judge District Court, 28 La. Ann. 45; Lloyd v. Brinck, 35 Tex. 1; Ins. Co. v. Heirs of Wilson, 8 Pet. 106.
“ Assuming, therefore, that the comity judge acted as a judicial tribunal, and having found all the facts necessary to a judg2irent or decree, so that the judgment or decree would be nothing but the conclusion of law upon the facts, the entering up of the proper judgment must be regarded as in its nature, ministerial; and in the absence of any other adequate specific remedy, a mandamus would be the proper method of redress.”
The decision of this case, therefore, now turns upon the answer to be given to this question: “Was the paving material which the petitioners proposed, designated in the petition in such ma2iner that specifications based upon it would admit of genuine competition between contractors, so that there could be two or more bids by individuals or companies in no manner connected with each other? ” The opinion of the board seems to have been, and the argumeirt of counsel .is, that the designation of Trinidad lake asphalt was too
' But in behalf of the board the argument goes beyond this. Its theory is that if the paving material named in the petition, was' owned and controlled by a single person or company, there could be no competition, for the reason that others who, might desire to compete for the contract could not do so, because the material would not be within their reach; and, accordingly, it is said that it must appear in the petition for a'mandamus, that the designated material could be the subject of competition in the sense that different bidders would be able to obtain it. We think the presumption is that every article of commerce is within the reach of any person who, desires it, and is able to pay for it; and therefore, that an allegation that Trinidad lake asphalt could be obtained by the bidder to whom the contract should be awarded’ was unnecessary. But even if it was the fact, as counsel intimate,- — and we have nothing but their word on the subject, — that this asphalt was controlled by some man or combination of men, we are not prepared to say that, therefore, the persons interested may not lawfully petition for its use as,paving material. We are referred to some cases in which it was held that material, the right to which was a patented monopoly, could not be the subject of competition,
The decisions cited by counsel for the respondent, and concerning which we have spoken, while in our opinion they are inapplicable, and criticism of them is therefore not called for, have not been acquiesced in elsewhere. In Hobart v. The City of Detroit, 17 Mich. 245, the question which we have just been considering was exhaustively discussed by Chief Justice Cooley. In an able and carefully prepared opinion, which covers the whole ground embraced in counsel’s argument, that eminent jurist held that the fact that some material necessary to the performance of a public contract was the subject of a monopoly, did not, necessarily, have the effect of shutting out independent competition for the contract. A contract had been let to pave a street with the “ Nicholson pavement.” This pavement was a patented invention, and the right to lay it in Detroit was owned exclusively by a single firm. The charter of Detroit required that after specifications of the work should be advertised, the contract should be awarded to the lowest responsible bidder. The argument was that owing to the exclusive ownership of the right to lay the pavement, competition was impossible. But the court
By the provisions of the Denver charter, where the cost must be paid by the abutting owners, no paving can be ordered unless a petition for the purpose by them is first presented. The petition designates the particular material desired for the wearing surface, and if the paving is done, that material must be used. This is the controlling feature of the charter provisions on the subject. The board cannot dictate the material. If is determined upon by the owners. If material unfit for paying purposes, or detrimental to the public interests, should be proposed, the board having in charge the interests of the public, might reject the proposal; but with the authority to pass upon the question whether the material proposed could properly be used for paving, its discretion ends. The subsequent steps it is required to take are simply means provided for carrying into effect the will of the petitioners. Its first duty, after receiving the petition, is to adopt details and specifications for the pavement, and in those specifications the particular material named in the petition must be so described by standard or quality as to admit of genuine competition between contractors. Whether an opportunity is afforded for such competition depends upon the language of the specifications, and not on that of the petition. While the specifications must describe the same material proposed in the petition, they need not do so in its exact phraseology, although there is no reason why they should not, if that is sufficiently expressive of standard or
Upon the facts stated in the petition for a mandamus, the board should have entertained the paving petition, and it was error to sustain the demurrer.
The judgment is reversed.
Reversed.