Bowles v. Neely

• Decision Date: 14 April 1911
• Citation: 115 P. 344,28 Okla. 556,1911 OK 122
• Parties: BOWLES v. NEELY, Mayor, et al.
• Court: Oklahoma Supreme Court

115 P. 344

28 Okla. 556, 1911 OK 122

BOWLES v. NEELY, Mayor, et al.

Supreme Court of Oklahoma

April 14, 1911

Syllabus by the Court.

A contract let by the mayor and city council for a municipal filtration plant, pursuant to Snyder's Stats. of Okla. § 702, but in excess of the estimate of cost submitted with the plans and specifications of the city engineer, is void.

A resident taxpayer of such municipality may invoke the interposition of a court of equity to prevent the illegal disposition of the moneys of the municipality in payment of work done pursuant to said contract.

The remedy afforded by Snyder's Stats. of Okla. §§ 704, 7413 and 7414, is not an adequate remedy at law in the sense that it will oust a court of equity of its inherent jurisdiction to restrain an unlawful expenditure of the moneys of a municipality at the suit of a resident taxpayer, but is cumulative thereto.

A "cumulative remedy" is a remedy created by statute in addition to one which still remains in force; and, when a statute gives a new remedy, and contains no negative, express or implied, of the old remedy, the new one provided is cumulative, and the party may elect between the two.

Error from District Court, Bryan County; Jas. R. Armstrong, Judge.

Action by R. P. Bowles against A. Neely, Mayor of the City of Durant, and others. Judgment of dismissal, and plaintiff brings error. Reversed and remanded.

McPherren & Abott, for plaintiff in error.

TURNER C.J.

On December 8, 1910, R. P. Bowles filed his petition in the district court of Bryan county, and therein substantially states that he is a resident taxpayer of the city of Durant that defendant A. Neely is the mayor, A. C. Etheridge president of the city council, C. C. Frost, John Kittrell, T J. Perkins, J. H. Newman, V. C. Phillips, O. L. Shannon, and V. B. Hayes, members thereof, M. A. Waits, treasurer, W. S. Shannon, city clerk, and the Southwestern Engineering Company, engineers of said city; that on July 11, 1910, said mayor and city council, having determined it to be necessary as an addition to the water works system of said city, employed said engineering company to submit plans and specifications for the erection of a filtration plant; that on August 17, 1910, the same were accordingly submitted and adopted by the city council, which directed the city clerk to advertise for bids for labor and materials to be furnished in the construction thereof and which was by the clerk accordingly done; that on September 7, 1910, said company so employed prepared and filed with said city clerk an estimate showing the cost of said filtration plant complete and erected and that the same should not exceed $15,500; that on September 9, 1910, bids for the construction thereof were opened by said mayor and city council as follows: Briggs Weaver Machinery Company, plus excavations at 35 cents per yard, $14,800; Daugherty Construction Company, filter building and clear well, $16,000; George Erichinson, Ardmore, filter plant complete, $25,894; Robertson Filter Company, Philadelphia, filter plant complete, $18,140; Collins Bros., Dallas, Tex., $23,121--that the cost of the excavations necessary to construct said plant as per plans and specifications of said engineering company adopted by the council were estimated by said company not to exceed 35 cents per yard for 3,000 yards, or $350; that said bid of the Briggs Weaver Machinery Company of $14,800, including said excavation and totaling $15,150, was the lowest and best bid for the work and within the estimate of said engineers, and that said bid of the Robertson Filter Company was not the lowest and best bid therefor; that on September 21, 1910, said city council, through said mayor and city clerk, entered into a contract with said Robertson Filter Company for the construction of a filtration plant according to plans and specifications submitted with the bid of said company, which said contract is filed as an exhibit; that said filtration plant is not according to the requirements and plans and specifications furnished by said engineering company and adopted by the city council and upon which said bids were based (stating wherein) and hence there was no competition between said bidders for the construction of said plant; that prior to the execution of said contract said city council pursuant to section 702 of the Compiled Laws of Oklahoma, 1909, had the city engineer prepare an estimate of the cost of the erection of said filtration plant, and that the price named in said contract exceeds such estimate $2,640, and is void under said section; that he is without adequate remedy at law; that the defendant engineering company will, pursuant to said contract, prepare and submit to said mayor and city council estimates of the work done by said Robertson Filter Company under said contract, which will be approved and warrants drawn against the public funds of said city in payment therefor and paid by defendant Waits as treasurer of said city out of said funds without authority of law, and prays for an order restraining defendants from in any manner preparing, accepting, or filing estimates of said work done by said company under said contract, and from drawing or paying any warrants for such work out of any funds belonging to said city, and for costs. From a judgment of said court rendered and entered December 16, 1910, sustaining a demurrer to said petition and dismissing his cause, plaintiff brings the case here, and assigns that the court erred in sustaining said demurrer.

As it seems to be conceded, and we think properly, that the contract set forth in the petition is void for the reason that it exceeds the estimate of costs submitted with the plans and specifications of the city engineer (Morrow v Barber Asphalt, etc., Paving Co., 111 P. 198; Snyder's Stats. of Okla. § 702), for that reason plaintiff as a resident taxpayer has a right to maintain this suit, the object of which is to prevent an illegal disposition of the moneys of the city (Hannan v. Board & Co., 25 Okl. 372, 107 P. 646), and hence the court erred in sustaining the demurrer, unless, as is contended, the petition...