118 Wash. 345 | Wash. | 1922
— This action was commenced in the superior court for Yakima county by the plaintiff, Wyant, seeking the enjoining of the defendant paving company and the county commissioners of that county from proceeding with the construction work and the
Tbe commissioners, having been advised, a short time after tbe awarding and entering into of tbe contract, that it was unlawfully made because of insufficient publication of notice inviting bids therefor, answered, admitting tbe facts as plead by the plaintiff, and prayed for tbe annulling of tbe contract and tbe enjoining of tbe prosecution of work thereunder by tbe paving company, in substance as prayed for by tbe plaintiff. Tbe paving company filed its answer and cross-complaint, wherein, by denials and affirmative allegations as against both tbe plaintiff and tbe commissioners, it seeks to have the contract adjudged to be a legal and binding one, and also seeks injunctive relief as against tbe commissioners to prevent their interference with tbe prosecution of tbe work. Tbe case was submitted to tbe superior court upon an agreed statement of facts, and resulted in a judgment as prayed for by tbe plaintiff and tbe commissioners; from which judgment the paving company has appealed to this court.
Tbe controlling facts may be summarized as follows: On January 24,1921, after proceedings duly bad resulting in tbe creation of the local improvement district, tbe commissioners duly passed a resolution in substance that sealed bids for tbe construction of tbe pro
“Pursuant to said resolution, the county auditor caused to be published in the Yakima Morning Herald notice that on Monday, February 7,1921, at the hour of 2 p. m., bids would be received in accordance with said resolution; . . . the first publication of said notice was made on January 25,1921, and the second publication of said notice was made on February 1, 1921, and no other publication of said notice was made or had; . . .”
On February 7,1921, the commissioners met at their office in pursuance of their resolution and the notice of the county auditor, duly published as they then supposed; and received bids for the construction of the improvement. Several bids were then received, opened and considered by the commissioners. One of the bids was that of the paving company; which bid, being the lowest, was accepted and approved as such by the commissioners, and the contract was then awarded to the paving company accordingly. In the record of the commissioners ’ action in that behalf, they recited that, “it appearing further that due notice of same has been given” — referring to the publication of the notice, by the county auditor, of the time and place of receiving bids.
Thereafter on February 11, 1921, the commissioners entered into a formal written contract with the paving company for the construction by it of the improvement. Thereafter a surety bond was furnished by the paving company as provided by the contract, which bond was approved by the commissioners. A short time thereafter, the* paving company commenced work upon the
This local improvement district was created and the proposed improvement therein is to be constructed under our law relating to the improvement of roads at the expense of property benefited; so we are to look to that law for the authority of the county commissioners in the inviting of bids and the awarding of contracts for the construction of such improvements. It is therein provided that bids for the construction of such improvements shall be invited by the commissioners by causing the county auditor to publish a notice therefor and that—
*349 “The notice shall be published for at least two consecutive weeks previous to the date of letting, in one or more daily or weekly papers published and of general circulation in the county, and in such other manner as the board may see fit to direct.” (§ 5755, Rem. Code.)
We have seen that the notice given by the county auditor was published on January 25 and February 1, that “no other publication of said notice was made or had,” and that bids were to be, and were, considered, and the contract actually awarded, on February 7. So it is at once apparent that the notice was not published for a period of two weeks previous to the date noticed for the letting of the contract, and the date on which the contract was actually let and awarded by the commissioners to the paving company. In other words, the period of publication was in no event for more than thirteen days, computing the period by the exclusion of the first day of publication and including the day of the awarding of the contract; putting aside in our present inquiry the question of whether or not the two publications were sufficient, as to number of publications.
Counsel for the paving company argue that the use of the words “two consecutive weeks,” in the above quoted portion of the law, means that two publications, a week apart, and the letting of the contract immediately following the last of two such publications, satisfies the law. We have at least two decisions of this court which we think hold to the contrary touching a statute which reads almost literally, and which we regard as meaning exactly the same as this law, in so far as we are here concerned with their meaning. In Ball v. Clothier, 34 Wash. 299, 75 Pac. 1099, there was involved the validity of a sale of real estate by administrators under our probate statute, which required personal service of an order to show cause, or that such •
“The respondent’s first contention must be sustained. The statute governing the decree of distribution in probate proceedings, Rem. & Bal. Code, § 1589*351 (P. C. 409, § 595), by reference to the statute governing the sale of real estate by an executor or administrator, provides that the decree shall be made only after notice of hearing has been ‘personally served on all persons interested in the estate at least ten days before the time appointed for the hearing of the petition, or shall be published at least four successive weeks in such newspaper as the court shall order. ’ Rem. & Bal. Code, §§1499, 1500 (P. C. 409 §§395, 397). In this case, though, the notice was published four times, the first publication was on May 18, 1911, and the hearing was set for June 12, 1911. Less than four weeks elapsed between these dates. We have held such a notice insufficient to give the court jurisdiction to make an order of distribution. Ball v. Clothier, 34 Wash. 299, 75 Pac. 1099; Teynor v. Heible, 74 Wash. 222, 133 Pac. 1, 46 L. R. A. (N. S.) 1033.”
Now the language of these two statutes, touching the time of publication, except as to one word, in so far as we are here concerned with its meaning, is literally the same. The probate statute reads “at least four successive weeks, ’ ’ while this road statute reads ‘ ‘ at least two consecutive weeks.” It seems difficult to conceive of two different words more completely synonymous than “successive” and “consecutive.” It follows that the meaning of these two statutory provisions is exactly the same, except that one relates to four and the other to two “successive” or “consecutive” weeks. Our decisions determining the meaning of this language in the probate statute manifestly are controlling in our present inquiry.
Contention is made that, since the law does not provide for the making or preserving of any record of the publication of the notice inviting bids, the recital by the commissioners in their record that “it appearing further that due notice of same has been given,”— referring to the publication of the notice inviting the bids — becomes a conclusive determination that such
Contention is made that the above quoted provision of the road statute, calling for publication of notice of receiving and opening of bids, is in any event only directory. We cannot so view the statute. Its language is plainly mandatory in form in so far as the publication of the notice for two consecutive weeks is concerned. The fact that the statute further provides that the commissioners may give such other notice as they'see fit does not make this mandatory provision directory. We are not here called upon to determine just how this defect in the publication would affect the right of Wyant or the commissioners to assert the invalidity of the contract had they delayed their challenge to the sufficiency of the publication of the notice until after the completion of the improvement. It is not impossible that at such a time some element of estoppel might have in at least some measure stood in their way of making any such claim; but that is not this case. Here, injunctive relief was sought with a fair degree of promptness; and for the courts to refuse such relief, under the circumstances shown in this case, would be to leave the commissioners free to ignore this
The judgment is affirmed.
Fullerton, Mitchell, Bridges, and Tolman, JJ., concur.