163 N.W. 550 | N.D. | 1917
Lead Opinion
This is an appeal from the judgment of the district court of the sixth judicial district, dismissing a complaint and denying-to the plaintiffs the relief sought in an action brought to enjoin the performance and effect of a cancelation of a paving contract entered into. between the city of Bismarck and the Ford Paving Company, for the paving of certain streets in paving district No. 2 in the city of Bismarck. The case is here for trial de novo and was argued on April 17th.. The appellants demand a review of the entire case. Most of the facts are contained in documentary evidence adduced at the trial, and there is very little dispute as to the material facts involved, although there is sharp conflict in the contention of appellants and respondents as to 'the legitimate inferences to be drawn from some of the facts established and as to the conclusions of law based thereon. The facts, may be briefly stated as.follows: During the.summer of the year 1916,.
On August 3d of that year, the city commission adopted a resolution of necessity in conformity with § 2704 of the Compiled Laws of 1913. At the same meeting of the commission the city auditor was directed to cause proposals for the paving to be advertised in the official newspaper, which advertisement was published as directed, appearing for the first time on August 5, 1916. The resolution of necessity was published concurrently with the proposal for bids. It appears from the record that, while this project was being discussed, a petition favorable to the proposition was signed by a number' of the citizens and property owners. Thereafter and prior to the 5th of August, 1916, communications were addressed to the members of the city commission, requesting the withdrawal from the petition of the names of the signers of the communications. The language adopted by those desiring to withdraw their names is as follows:
“We, the undersigned, having signed a petition for paving in the city of Bismarck, North Dakota, which petition is on file with.you, do hereby request that our names be taken from such petition filed with you recently.”
To the above communication there were 129 signatures attached. Between the 20th of August and the 11th of September, the latter date being the date of the letting of the contract, there were approximately 153 protests filed with the city auditor, which protests were in the following form:
“I am the present owner of the property herein described, and desire to protest'against paving in front of the same.
“Any former request in favor of paving affecting this property is1, ■hereby withdrawn.” (A description of the property followed.) The extent to which these withdrawals and protests were considered by the city commission will appear later in the discussion of the legal propositions relied upon by the appellants. On August 29th and on other dates prior to September 11th, there was published in the Bismarck
“This committee believes it to tbe best interest of property owners that the selection of paving material be deferred until this committee in conjunction with tbe city commission paving committee, can investigate'the merits of the various kinds of paving materials. Therefore we suggest that, should property owners be asked to sign petitions for paving material, that they do not do so without conferring with some of the members of this committee.” This notice was signed by a committee styling itself the “Citizens’ Paving Committee.” The indi- • vidual names of seven prominent citizens of the city were attached to the foregoing notice. It appears from the record that the “Citizens’ Paving Committee” and the paving committee of the city -commission co-operated in making an investigation of the various kinds of paving materials and their adaptability to the contemplated improvement of the district in question. To this end a committee visited various cities, and at least part of the expense, if not the entire cost of the joint investigation, was paid by the city of Bismarck. No petitions of property owners specifying the kind of material desired, such as would have had the effect, under § 2704 of the Compiled Laws of 1913, of precluding a choice by the members of the city commission, were filed. At the meeting of the commission on September 11th, a committee of property owners appeared before the city commission and asked an extension of time for a period of-five days, in which to permit further discussion by property owners of the kind of paving materials before the letting of the contract. The contract, however, was let on September 11th, in pursuance of the notice to bidders, except that the amount of work specified in the proposals for bids was decreased to the extent of four blocks around the courthouse and 75 feet west of Second street.
In that portion of the specifications which is headed “Notice to Bidders,” there is included a proposed contract which contains certain provisions relative to the power of the city engineer to increase or decrease the quantity of work and to supervise the same. These features of the proposed contract, which were drawn into question by the appellants, will be specifically noted later on in considering the validity of the objections raised, and we shall also note and consider in that con
On behalf of the appellants it is contended that the contract entered into in the circumstances above outlined, between the city of Bismarck and the Ford Paving Company, is invalid; First, on account of irregularities, deficiencies, and malfeasance in the acts of the city commission leading up to the letting and execution of the contract; second, that the contract itself is irregular, and for this reason defective and void. In specifying the particulars in which the proceedings of the commission were irregular, the appellants contend that the notice of proposals for bids was defective in that it was published concurrently with the resolution of necessity, and was not published for the requisite time after the expiration of the fifteen days within which protests against the paving project might be filed by property owners. Section 3702 of the Compiled Laws of 1913 gives to cities the power to create paving districts. Section 3703 authorizes the council or commission, as the case may be, to employ an engineer to prepare plans and specifications for such work and to make an estimate of its probable cost, and requires that these plans and specifications shall be approved by resolution. Section 3704 provides that after the plans, specifications, and estimates shall have been filed in the office of the city auditor and approved, the city council shall, by resolution, declare such work or improvement necessary to be done; that such resolution shall refer intelligently to the plans, specifications and estimates, and that it shall be published twice, once in each week for two consecutive weeks, in the official newspaper of the city. It further provides that, if the owners of a majority of the property liable to be specially assessed, “shall not, within fifteen days after the first publication of such resolution, file with the city auditor a written protest against such improvement, then the majority of such owners shall be deemed to have consented thereto;”, and that “at the next regular meeting of the city council after the expiration of the
“The city council shall then (the italics are ours) cause proposals for said work to be advertised for in the official paper of such city twice, etc.” The appellants argue that it is the evident purpose of the two sections of the statute, when read together, that bids for the work of construction shall be advertised for only after the time for filing protests has expired. We do not so read the statute. It is the purpose of the sections summarized above to provide a simple, yet comprehensive, procedure to be followed in making public improvements of the character here involved. The various steps leading up to the letting of the contract follow in orderly succession from the first creation of the district. Plans, specifications and estimates for the guidance of the city commission and the property owners are first required to be placed on file. Next, after full opportunity to inspect the plans and specifications and consider the estimates, the members of the city commission are empowered to pass a resolution of necessity. This resolution- presumably represents their official judgment, acting as representatives of the electors of the city, and it is required to be published for the information of the public and particularly the property owners affected by the contemplated improvement. The statute allows fifteen days after the first publication of this resolution for the filing of protests, and if, within that time, the owners of a majority of the
Appellant argues that the failure of the city commission, if they did
It appears in the case at bar, however, that there not only were no protests filed within the statutory period, but that such protests as were filed prior to the letting of the contract, counting as pretesting those who merely withdrew their names from the voluntary petitions, did not aggregate 50 per cent nor even 40 per cent of the property, nor did the city commission altogether ignore them. These protests were considered by the paving committee of the city commission, consisting of the entire commission, and' their conclusions based thereon, after an investigation made by them, were reported to the commission in writing at the meeting of September 11th, and this report was placed on file. This amounted to an adoption of the report and constituted action by the commission. Knopfi v. Grilsonite Hoofing & Paving Co. 92 Mo. App. 279.
“Q. Did you afterward render an account of them to the city audit- or ?” To which he answered, “Yes, sir.” And,
“Q. You were reimbursed by the city for the expenses of that trip?” To which he answered, “Yes, sir.”
The bids were opened at the meeting of the city commissioners held •on August 28th, and immediately thereafter notice that the contract would be awarded on September 11th was published seven times in the official newspaper of the city. The joint investigating committee returned from their inspection tour a week before the date for the let-' ting of the contract. From these circumstances it is apparent that any pi’operty owners desiring to express a preference for any particular kind of paving material had full opportunity to do so. The notice of the •Citizens’ Paving Committee itself did not request the property owners to refrain from expressing themselves, but only apprized the public that a joint investigation would be made, and suggested that property owners refrain from signing petitions without first conferring with some of the members of the Citizen’s Paving Committee. In view of the fact that the statute precludes the selection of paving material by the city •commission when a petition signed by the requisite number of property •owners, expressing prference for a given material, is filed, the course pursued in this instance commends itself to our judgment as being but a reasonable method of making an intelligent selection. The record, in •our judgment falls far short of conveying evidence of collusion, and it amply sustains the negative findings of the trial court on this question.
It is next contended that the contract is invalid by reason of the fact that the proposed contract which is part of the plans and specifications adopted by the city commission and described in the proposal for bids contain clauses delegating to the city engineer powers which could properly be exercised only by the city commission, and that the ■same were misleading, deceptive, and deficient to such a degree as to violate the requirements of the statute that work should be let to the lowest responsible competitive bidder. Comp. Laws 1913, § 2708. This contention is based upon the clauses in the proposed contract purporting to •delegate to the engineer the power (1) to make alterations in the work
Neither can we see wherein the stipulations contained in the proposed contract would operate to prevent competitive bidding. It is true that a contractor who might anticipate favors from the engineer would be more apt to put in a low or reasonable bid than would one who had no reason to anticipate favorable action on the part of the engineer. But,, in our judgment, this is a matter that cannot be considered in determining the validity of the proposal. In final analysis this argument merely amounts to the suggestion that anticipated favoritism is likely to-be substituted for real competition. We do not see wherein the criticized portions of the proposed contract contribute to the probability of this result. It is the manifest object of these provisions to give the trusted expert of the city, in dealing with the contractor, ample authority to safeguard the public interests,- and in our judgment such provisions in public contracts are both expedient and wise. If it is impossible to insert and give effect to provisions such as those in question, without destroying the opportunity for competitive bidding, what practical method of insuring the faithful performance of such contracts can be suggested that will not be open to the same objection? See Salt Lake City v. Smith, 43 C. C. A. 637, 104 Fed. 457.
As to the suggestion that the amount of work to be done was indefinite, this is wholly without merit. The proposals for bids advertised specify only approximate quantities, and the bidders bid upon a schedule of items of material and work in such a way that the successful bidder was bound according to a schedule of unit prices for the various-items of work to be done. An alteration in quantity, therefore, either of excavation, filling, grading work, re-enforcing, surfacing, etc., reducing the quantity of any of such work, would but result in crediting the district with the price determined in advance, whereas an increase
In further support of the contention that the contract is invalid, the appellants call attention to the provision requiring that the work shall be completed to the “entire satisfaction of the city engineer.” This contract does not involve a matter of esthetic taste, and would be considered legally performed when the work was done in accordance with the plans and specifications. The engineer could not prevent a recovery of the compensation by capriciously or arbitrarily withholding his approval. See Gearty v. New York, 171 N. Y. 61, 63 N. E. 804, and eases cited therein; also Richison v. Mead, 11 S. D. 639, 80 N. W. 131; Nolan v. Whitney, 88 N. Y. 648.
The appellants also argue that the contract is invalidated by § 5242 of the Compiled Laws of 1913 by reason of the failure of the Eord Paving Company to obtain a license to do business in the state in conformity with § 136 of the Constitution and §§ 5238 — 5240 of the Compiled Laws of 1913. This contention is wholly without merit. It is not shown that the company was doing business here at or prior to the time of entering into the contract in question, and it appears that a license was obtained a little more than a month after thé contract was made. See Beale, Foreign Corp. § 204.
The foregoing opinion considers all the objections urged by the learned counsel for the appellants. Finding that the objections made are legally insufficient to warrant the relief sought, and that the judgment of the trial court is in all things correct, it is affirmed.
Dissenting Opinion
(dissenting). This is a timely suit to annul a contract for the pavement of some 12 miles of streets in northern Bismarck. It is free from all complications of estoppel or laches, 'which arise when parties commence actions after the construction of a pavement. The complaint avers that the entire cost of the paving will be grossly in excess of any possible benefits to the land and lots; and that is a fact of which a court sitting in Bismarck may well take judicial notice. In drainage district No. 2, which is the northern part of the city, the land has a gradual slope to the Missouri river. The natural drainage is ample and perfect, and the soil is light and does not become sticky like the soil of the Red river valley. In winter time pavement is of no use, and in summer time a day or two of wind and sunshine puts the streets in a splendid condition. And so a pavement can be of no real benefit only during the few days of the spring and autumn. Then it does appear that the northern part of the city is largely composed of lowly homes, where the children need bread and butter and clothing more than they need a pavement for a few days of the year.
The purpose of the statute is to authorize the construction of a pavement only in case of necessity, and not merely at the pleasure of the city commissioners; and they may not vest themselves with authority to make a pavement and to put mortgages on the lands of others by a mock resolution of necessity, when in truth and in fact there is obviously no necessity.
In any case, before the city counsel are authorized to construct a pavement, there must be some apparent necessity for it, and they must employ an engineer to prepare plans and specifications showing all the details of the work to he done, with an estimate of the cost. Then they must pass a resolution declaring the work to be necessary, and that resolution must refer to the plans and specifications and the estimate of the cost, and it must be published for two weeks. But the resolution of necessity in this case contains nothing in reference to the estimate of cost; nothing to warn the people of the total cost of the pavement or to call their attention to the importance of the matter.
In regard to the plans and specifications, they do not comply with the statute, and they do not give all the details of. the work to be done. They do not give the working details so as to make it possible for a competent contractor to go out and do the work without a boss. Under
Instead of working plans and specifications under which the contractor might go on and do his work in an independent way, the same as a builder, the idea was to subject him to the absolute control of the engineer, and to give the engineer 4 per cent, or $16,000, for bossing the summer job,'when the bossing or supervision should not exceed $3,000. A public job should be done without graft and with precisely as much economy as a private job, and a public contractor should not have to charge an extra 10 per .cent for putting himself at the mercy or dictates of a boss.
Those who have to pay the cost of an extensive paving should be fully and fairly consulted, and there should be no attempt to rush it over them or to force on them an expensive and needless pavement.
When public officers undertake to act under a statutory power, and to subject the property of others to the expense of an extensive paving system, they must act in good faith and fairness, just the same as if they themselves had to pay the expense. And it is their duty to consult the will and wishes and the interests of those who have to bear the expense, and to comply strictly with all the requirements of the statute. For these reasons, the judgment of the District Court should be reversed, and the case remanded to the District Court to enter judgment in favor of the plaintiffs, as demanded in the complaint.
The above opinion was written and given to the other judges a month ago, and, as I then understood, it was the opinion of most of the judges; but now, without any conference so far as I know, they sign a con
(1) In northern Bismarck nature has paved the streets and made them so splendid that an artificial pavement would be of no possible use, and after a rain the ground dries up quickly and becomes about as hard as any pavement. The expense of keeping up a natural pavement and repaving is not half as much as keeping up and repairing an artificial pavement. The statute does not authorize a pavement by city commissioners, only in case of necessity. City commissioners may not vest themselves with authority to mortgage the lands and lots of others to pay for a pavement, by a mock resolution of necessity, when in truth and in fact there is obviously no necessity.
In most of drainage district No. 1, and in the business part of the •city, a pavement is all right, and the frontage expense would not exceed 1 or 2 per cent on the value of the property. But in northern Bismarck, as a rule, the frontage expense would be equal to 60 or 100 per cent of the value of the lots, and in many cases it would be more than twice the value of the lots, and if charged against the lots it would confiscate them.
It is true that, according to law, no special assessment can be laid against any lot in excess of the actual benefits to the lot. In a lot which is 50 x 150, worth $700, the cost of a pavement at $7 a front foot was $1,400, or twice the value of the lot. If the pavement would not add more than $100 to the sale price or value of the lot, in such a case the special assessment would be limited to $100. And who is to pay the balance of $1,300 ? The statute expressly limits the amount of any special assessment to the special benefits. Comp. Laws, 1913, § 3726. And for that reason Judge Christianson was not disqualified by reason of owning a lot in the paving district, and he should not have refused to sit in this case. Under a proper construction of the law and a proper assessment, the paving could be of no injury to him any more than to any other property holder in the city of Bismarck.
Under the conditions presented a special assessment imposed on the people against their will comes near to being an outrage, and it must lead to endless litigation. There will be suits to restrain the commissioners from levying any assessment in excess of the actual benefits
(2) The city commissioners had no power or authority to contract ■for any pavement without first making and publishing a resolution of necessity, with an estimate of the cost. Oomp. Laws 1913, § 3704. This, they failed to do. The resolution of necessity does not attempt to state any facts showing a necessity. It does not refer to any estimate of cost or in any manner refer to the cost. It contains not a word about the cost. The resolution must declare the work and improvement necessary to be done, and it must refer to the specifications and estimates of costs, and be published once in each week for two consecutive weeks in the official newspaper of the city. Comp. Laws, 1913, § 3703. If the resolution as published had stated that the pavement was to cost nearly $400,000, with engineer’s fees nearly $16,000, then- the people might have waked up and come in with their protests.
In Illinois, when there was a failure to comply, with the statute requiring the engineer’s estimate of cost to be made a part of the resolution, the proceeding was held void. Illinois C. R. Co. v. Eicher, 202 Ill. 557, 67 N. E. 376; Bickerdike v. Chicago, 203 Ill. 636, 68 N. E. 161. It was held not sufficient to state merely the gross amount of the estimate. The reasons given are that the estimate is not merely for the purpose of enabling the board to act, but also for the benefit and protection of the owners of property to be assessed. The items which entered into the improvements and the cost are facts material to be considered by the property owner in determining whether he will consent to or oppose the improvement, and for his protection the requirement of the statute must be complied with. Indeed the authorities are uniform in holding that an assessment for the cost of an improvement is void if the city fails to comply with the essential requirements of the ■act under which it proceeds. 28 Cyc. 1107.
The plans and specifications do not contain the details of all the work to be done, with an estimate of the cost, and that is an essential requirement of the statute. Comp. Laws 1913, § 3703. It is a •document of forty-six very large pages of small print; it is in a cover marked “Specification for Paving.” With the exception of part of the three first pages, it applies as well to a pavement in St. Louis or Omaha