Anderson v. Fuller

• Decision Date: 11 June 1906
• Citation: 41 So. 684,51 Fla. 380
• Parties: ANDERSON v. FULLER et al.
• Court: Florida Supreme Court

41 So. 684

51 Fla. 380

ANDERSON v. FULLER et al.

Florida Supreme Court, Division B.

June 11, 1906

Appeal from Circuit Court, Hillsborough County; Joseph B. Wall Judge.

Action by J. B. Anderson against W. R. Fuller and others. From an order denying the appellant's application for an injunction, he appeals. Reversed and remanded.

Syllabus by the Court

SYLLABUS

Where the charter or incorporating act requires the officers of a city to award contracts for public works to the lowest bidder, a contract made in violation of its requirements is illegal and void, and neither the municipality nor its subordinate officers can make a binding contract for such work, except in compliance with the requirements of the law.

The intention of the law in requiring such contracts to be let or awarded to the lowest responsible bidder for the work is to secure the public improvement at the lowest reasonable cost to the taxpayers. Therefore the incorporation into the advertisement for bids, or into the specifications of the work, upon which such bids are predicated, of illegal or unauthorized conditions or obligations upon the contractor compliance with which on his part will necessarily and illegally increase the cost of the work, is not a letting of such contract to the lowest bidder within the meaning of the law, and will render the contract illegal and void.

When a municipal corporation confines itself within the limits of its power and jurisdiction, it is not liable to an action for consequential damages to private property or persons (unless such liability is imposed by speecial constitutional provision or by statute), where the act complained of was done by it or its officers under and pursuant to authority conferred by a valid act of the Legislature, and there has been no want of reasonable care or want of reasonable skill in the execution of the power, although the same act, if done without legislative sanction, would be actionable.

While municipalities may by ordinance grant to individuals and corporations, the privilege of occupying the streets and public ways for lawful purposes, such as railroad tracks poles, wires, gas and water pipes, such rights are at all times held in subordination to the superior rights of the public, and all necessary and desirable police ordinances that are reasonable, may be enacted and enforced to protect the public health, safety, and convenience, notwithstanding the same may interfere with legal franchise rights. Thus a water company placing its pipes in the streets under a franchise contract with the city does so in subordination to the superior rights of the public, through its duly constituted municipal authorities, to construct sewers in the same streets whenever and wherever the public interest demands; and if in consequence of the exercise of this right the water company is compelled to relay its pipes, in the absence of unreasonable or malicious conduct, it has no cause of action against the corporation for reimbursement on account thereof. And the city in such a case has no authority voluntarily to burden itself or its taxpayers with the payment of damages necessarily consequent upon the reasonably careful and skillful execution of its authorized public works.

The law is well settled that a taxpayer in a city can properly maintain a bill to restrain public officials of the city from paying out public moneys upon a void and unauthorized contract.

COUNSEL

Macfarlane & Glen and John P. Wall, for appellant.

Sparkman & Carter, Peter O. Knight, and C. C. Whitaker, for appellees.

On the 27th day of September, 1905, the appellant alleging that he was a citizen and taxpayer upon real and personal property in the city of Tampa, Fla., filed his bill in equity in the circuit court of Hillsborough county against the appellees W. R. Fuller, Robert Mugge, S. J. Drawdy, and B. M. Balbontin, as members of the board of commissioners of public works of said city of Tampa, and against the appellees George C. Warren and Fred T. Warren, alleging therein, among other things: That the said board of commissioners of public works, being thereunto duly authorized, published a notice calling for bids for furnishing the material and labor necessary to construct a sewerage system in certain streets, alleys, and avenues of the said city of Tampa, a copy of which notice is attached an an exhibit to the bill. Said notice for bids refers to certain specifications in the hands of the engineer of the board that are to be made the basis of such bids, and a copy of such specifications is also attached as an exhibit to the bill. That on the 1st day of August, 1905, the defendants George C. Warren and Fred T. Warren submitted to and filed with the said board of commissioners of public works a bid for furnishing the material and the performance of the labor necessary to carry out the said contract; that afterwards, in August, 1905, the said board of commissioners of public works accepted said bid of the said George C. and Fred T. Warren, and afterwards, on the 31st day of August, 1905, attempted to enter into various written contracts with the said Warrens for the carrying out of the work provided for in said plans and specifications and the bid made by them, the exact number of contracts so entered into being unknown to your orator, but alleges that all of said contracts were identical in their provisions, except as to differences in the amounts did on different streets as shown in their different bids. A copy of such contracts is attached as an exhibit to the bill. That said Warrens, with whom the said contracts were so entered into, were not in fact the lowest responsible bidders for the said contract, but that there was submitted to and filed with said board at the same time a bid on the part of Joseph E. and George W. Bryan, partners as Bryan & Co., which was in fact a lower bid than that of the said Warren & Warren by approximately the sum of $6,000 and that said Bryan & Co. are and were responsible bidders, able to carry out and perform the said contract, and that said board of commissioners were fully satisfied as to the responsibility of the said Bryan & Co., notwithstanding the fact that they awarded the contract to the said Warren & Warren. That said contracts entered into between the said board of commissioners of public works and the said Warren & Warren are upon their face utterly null and void, among other reasons, for the reasons hereinafter mentioned:

'(a) That the said contracts do not conform to the advertisement for bids and the plans and specifications therein referred to.

(b) That said contracts reserved to the said board of commissioners of public works the power to increase or diminish the work, to make any changes in the line, grade, plan, form, position, dimensions, and material of the work, either before or after construction.

(c) That the said specifications required and the said contracts provided that the contractor at his own expense should remove all gas pipes, water pipes, and conduits forming an obstruction to the line or grade of the sewer.

(d) That said specifications required and the said contracts provided that the contractor shall be responsible for all the damages to buildings, bridges, railroads, street car lines, pipes, culverts, or other property on the line of the work, and for all injury to gas or water pipes, and for all waste of gas or water due to the execution of the work.

(e) That said contracts provided that the price bid by the said contractor should include the replacing of all water courses and drains, or proper rearrangement and reconstruction of any drain, water pipe, gas pipe, telegraph, telephone, or electric poles, pipes, or any conduit of any nature or description which may be encountered and injured, or which may interfere with the line or grade of the work; also the maintaining of travel over any railroad or street car line which may be liable to obstruction by reason of said work, and the proper repair of any injury to the same.

(f) That said specifications required, and the said contracts provided, that the contractor should assume liability for all damages occasioned by doing the work therein provided.

(g) That in and by the said contracts the said board of commissioners abdicated their functions in favor of the city engineer and invested him with powers and duties not authorized by law.

(h) That the said contracts and the specifications made a part thereof constituted an unlawful delegation of the authority of the board of commissioners of public works in respect to duties imposed upon them by law, and incapable of delegation.

(i) That the notice calling for bids by requiring separate bids on each street violated the provisions of the city charter of said city which requires all contracts to be let to the lowest responsible bidder.

(j) That said specifications upon which bids were called for did not sufficiently apprise bidders of the nature, extent, and character of the work, so as to comply with the city charter requiring all contracts to be let to the lowest responsible bidder.

(k) That the said contracts are illegal and void.

That the said city of Tampa is not itself the owner of any gas or water pipes in the streets of said city, or of any telegraph telephone, or electric poles, pipes, or conduits of any nature, or railroad or street car line operated within the city of Tampa, and that all of the same are owned by private corporations doing business in the city of Tampa under franchises or licenses from said city, and that said city has no power or authority, either directly or indirectly, to appropriate money of the city or impose an expense on the taxpayers of the city for the benefit of the said private...