107 Neb. 637 | Neb. | 1922
This is an original action in mandamus in this court brought by the state, on the relation of the city of
The refusal of the auditor to register the bonds was based upon two grounds: First, that the contract for the paving for which the bonds were issued was in violation of section 5011, Rev. St. 1913, in that the cost of the paving named in the contract was in excess of the engineer’s estimate; and, second, that after the ■original contract was let the council by ordinance increased the width of the pavement to be laid upon certain streets and let the contract for the increased amount to the original contractor, without having first obtained an estimate of the cost from the city engineer, and without advertising for bids, and without letting the contract upon a competitive basis.
No question is raised as to the validity of the ordinances creating the improvement district, declaring the necessity of paving certain streets and alleys, and designating the width of the pavement to be laid thereon. By direction of the city council the city engineer prepared plans and specifications for the improvement in accordance with the ordinances, and made an estimate of the cost thereof which were adopted and approved by the city council, and the.city clerk was ordered by the council to advertise for bids for the proposed improvement/ The estimated cost of the improvement by the engineer was based upon the unit plan. For example, he submitted four different types of paving, estimating the cost of each of them at a certain amount per square yard. He also estimated that the excavating and grading w.ould cost $1.25 per cubic yard, and in the same manner estimated the cost of curbing and guttering at a certain price per lineal foot. This
By resolulioxi the city' council adopted, approved, and accepted the Avork, and fixed a date for the sitting of the council as a b >ard of equalization for the purpose of assessing special benefits or injuries sustained in consequence of the improvement. Thereafter proceedings Avere regularly taken, and upon due notice a hearing Avas held by the city council sitting as a board of equalization, at the conchision of Avhich a resolution Avas duly passed assessing the cost of the Avork, - other than the cost of the intersections, to the property within the district, according to benefits. No appeal Avas taken from this action of the council, and the property owners would now be estopped to raise any question as to the validity of the assessment. The city council also provided that the cost of the intersections should be borne by the city at large. As before intimated, the total amount of the special assessments levied against the property Avithin the district Avas • $271,202.67, which, under the law, was payable in 20 instalments, the first instalment becoming delinquent in 50 days. Under the laAAq property owners had the right to pay the entire assessment Avithin 50 days and thus escape the payment
The city of McCook is a city of . the second class, 'and the proceedings of the city council in letting the contract for the paving were had under section 5011, Rev. St. 1913. The provisions of that section, in so far as they relate to the question now being considered, are as foIloAVS:
“Before the city council shall make any contract for building bridges or sidewalks, or for any work on the streets, or for any other work or improvement, an estimate of the cost thereof shall be made by the city engineer and submitted to the council, and no contract shall be entered into for any work or improvement for a price exceeding such estimate, and in advertising for bids for any such work the council shall cause the. amount of such estimate to be published therewith.”
The first question Avhich deserves consideration is Avhether the contract Avhich Avas entered into between the city and Brodie & Company was for a price in excess of the estimated cost made by the city engineer. It Avill be observed that there is nothing in the statute above quoted which requires the estimate of the engineer to be in writing. The requirements of the statute could be met by a Avritten or a Arerbal estimate, or by a Avritten estimate supplemented by a verbal statement, as Avas done in this case. It will be noted that the only inhibition upon the council’s action is that, before letting»any
But it is argued that, in letting the contract containing provisions not embodied in the estimate which was published at the time bids were asked for on the work, other bidders were deprived of the right of fair competition. The argument assumes that it was necessary to advertise for bids, and also to let the contract to the lowest responsible bidder. There is nothing in the statute, however, pertaining to the government of cities of the second class which requires this to be done. We have statutory provisions affecting certain classes of cities and municipal corporations which require an advertisement for bids and the letting of contracts to the lowest responsible bidder, where the expenditure is over a given sum; but these provisions, however salutary they may be, cannot be construed as applying to cities of the second class. If section 5011, Rev. St. 1913, should be construed as requiring that resort must be had to competitive bidding in letting contracts for public Avork, then it is manifest that in every instance, hOAvever trivial the expenditure might be, resort must be had to that method. in letting contracts, because there is no maximum amount named, as is usually the case, within Avhich the council might contract without asking forbids. In passing, Ave may say that the provision of section 5011 Ave are nOAV considering has been in force, unchanged in its language, for almost 50 years, and, generally speaking, has been found sufficient to meet the requirements of cities of this class. We are aAvare that-in Fulton v. City of Lincoln, 9 Neb. 358, language is used in considering the statute which might be con
In the case of Yarnold v. City of Lawrence, 15 Kan, 126, the court had before it foi1 construction a statute identical in substance and almost identical in terms Avith ours. In the course of the opinion prepared by Mr. Justice Brewer, it Avas said:
“That section provides that, prior to any contract, the city engineer shall make and submit to the council an estimate of the cost, and that in advertising for bid's the amounts of such estimate shall be published. Counsel contend that the city is required to advertise for bids, and that, therefore, when the bids are received, she must let to the loAvest bidder. We dissent from both premise and conclusion. The section does not declare that before any contract is let an advertisement shall be made for bids. It simply says that, ‘in advertising for bids,’ certain things shall be published. Requiring that, Avhen an advertisement is made, certain things shall be published,, is by no means equivalent to requiring that advertisements be made in all cases.. We see no reason to doubt the right of the city, under that section, to make a valid contract Avithout any advertisement. Nor does it necessarily follow from the fact of an advertisement for bids, that the contract must be let to the loAvest bidder. There is a strong implication that such ought to be the result, but it is not the necessary legal conclusion. We think, therefore, that the contract in question must, under the laAV in force at the time it Avas made, be sustained.”
With respect to the objection that the contract Avas
Other reasons might be advanced upon Avhich the bond issue should' be sustained, but Ave deem it unnecessary to prolong this opinion by considering them. As before stated, the city has approved and accepted the work, the assessments have been made to pay for the same, and a considerable portion thereof has in fact been paid. None of the property owners have taken any appeal from the action of the city council sitting as a' board of equalization, and they are now estopped from raising any question as to the validity of the contract. The liability has thus become fixed. The issuance of bonds is a mere substitution of the form of indebtedness which the city OAves.
Under the facts as shown by this record, we are of the Ariew that the action of the city council in letting the original contract, as well as the contract for the additional paving occasioned by the Avidening of the pavement on certain of the streets, was well within their power, and was a substantial compliance Avith the law in all respects, and that the issuance of bonds under the provisions of chapter 50, Laws 1919, for the purpose
The bonds are entitled to registration.
Writ of mandamus allowed.