Burgess v. City Of Cameron

• Decision Date: 04 October 1932
• Docket Number: (No. 7333)
• Citation: 113 W.Va. 127
• Court: West Virginia Supreme Court
• Parties: Walter F. Burgess v. City of Cameron

113 W.Va. 127

Walter F. Burgess

v.City of Cameron

(No. 7333)

Supreme Court of Appeals of West Virginia.

Submitted September 13, 1932.

Decided October 4, 1932.

December 6, 1932.

(Rehearing denied)

1. Municipal Corporations

The common council of the city of Cameron is without authority under its charter (Chapter 10, Acts of 1927) ro award a contract for the resurfacing of a portion of a street to he paid for in part by the owners of abutting properties, except upon competitive; bidding.

2. Same

The fact that a municipality has received the benefit of the resurfacing of a portion of a street under a verbal contract not awarded under competitive bidding (the charter requiring competitive bidding), does not render the city liable to the contractor for the amount stipulated to be paid him under the contract, or upon quantum meruit.

3. Same

Where charter provisions prescribe the manner in which contracts for construction work shall be awarded, a person undertaking to contract with the council must take notice of such provisions. Where they are ignored, the contractor acts at his peril.

Error to Circuit Court, Marshall County.

Action by Walter P. Burgess against the City of Cameron. To review a judgment in favor of the defendant, the plaintiff brings error.

Affirmed.

Martin Brown, for plaintiff in error.

Chauncey D. Hinerman, for defendant in error.

Maxwell, Judge:.

Plaintiff is a contractor. The official records of defendant disclose ordinances passed by its council providing for the ''resurfacing of a portion of Maple Avenue" at 90c per square yard for retread and, for cement curbing, $1.00 per lineal foot; further, that the city solicitor be instructed to prepare a contract between the city and plaintiff upon that basis. The contract was not prepared.

Plaintiff completed the project at a cost of about $900.00. Of this amount $357.80, covering the said curbing and certain patch-work on another street, was paid him by the city, leaving a balance of $605.00 which is the basis of plaintiff's action against defendant. The case was tried by the circuit court of Marshall County in lieu of a jury. Upon conclusion of plaintiff's evidence a motion by defendant to strike out the same and find for defendant was sustained. Writ of error was awarded plaintiff.

Defendant plead the general issue and filed special pleas. In the special pleas it is averred among other things that plaintiff should not recover because there was no written contract between the parties; that the suit is based upon an alleged "street paving contract" and not for "current and incidental expenses of the city"; that the contract, if any, is void because the city council did not advertise for bids as provided in the city charter; and that the ordinances and resolu- tions purporting to authorize the resurfacing of Maple Avenue were not read at two consecutive meetings of the council as required by the charter.

It is not disputed that the city made a payment to plaintiff of $357.80 upon completion of the project, thus impliedly accepting the work. The portion of the street resurfaced has been used by the city since its completion. Though there was no written agreement between the contractor and the city, it is not denied that there was a verbal agreement, A contract for street paving need not be in writing. Harrold v. City of Huntington, 74 W. Va. 538, 82 S. B. 476. These matters, however, become subordinate to a more serious feature of the case, upon which we believe the decision must turn.

Section 39 of the city charter reads:

"The council shall have the authority to provide that any street, avenue or alley or any portion thereof, between the curbstones shall be macadamized, paved, repaved or resurfaced with brick, concrete, asphalt, or other suitable material, upon the lowest and best terms obtainable, after advertisement for four weeks in one or more newspapers in the city, for bids and proposals for the work; and two thirds of the cost of such * * * paving, repaving or resurfacing * * * shall be assessed to the owners of lots * * * fronting or abutting on such street."

That there was no advertising for bids as required by the foregoing section, is not disputed. Plaintiff contends, however, that inasmuch as defendant has continued to use the street and has paid a part of the contract price, it has received the benefits of the work and has ratified the contract; that it is estopped from denying liability for the unpaid balance of his claim. It is also a contention of plaintiff that the city council in providing for the resurfacing of Maple Avenue had authority to do the work under either section 39 or section 15 of the city charter. We cannot subscribe to that view. Section 15 provides in part:

"The council of said city shall have power to lay off, vacate, close, open, alter, grade and keep in good repair the roads, streets, alleys, pavements, * * * for the use of the citizens or of the public, and to improve and light the same, * * * and to provide a revenue for said city for municipal purposes, and to appropriate such revenue to its expenses, and generally to take such measures as may be deemed necessary or advisable to protect the property, public and private, within the city; to preserve and promote the health, safety, comfort and well-being of the inhabitants thereof."

Now while there may be a zone of uncertainty between that which is clearly a repair job under section 15, and that which is clearly a construction job under section 39, we do not think that the resurfacing of a street for its entire width and for a distance of more than 300 feet, as in this case, can reasonably be said to be a mere repair job within the meaning of section 15.

It appears from the record that the owners of properties abutting Maple Avenue petitioned the council to provide for the resurfacing of a portion of that street. It further appears that it was the understanding between the council and the property owners that two-thirds of the cost of the work was to be paid by the latter and one-third by the former, the city to pay its proportionate share out of the general fund. Section 39 of the charter is the only section which provides that a proportionate part of the cost of resurfacing a street may be assessed to abutting property owners. It is very clear, therefore, that in negotiating for the resurfacing of Maple Avenue, the council was proceeding under section 39 and not section 15.

In providing for advertisement for bids, did the legislature have in mind competitive bidding? And, is the provision mandatory? Both questions must be answered in the affirmative. This section does not confer a privilege, but imposes a duty, upon the council. The section prescribes but one method of contracting for the resurfacing of the city streets or portions thereof. "Whenever a statute limits a thing to be done in a particular form, it necessarily includes in itself a negative, viz: that the thing shall not be done otherwise." 19 Cyc. 26. Expressio unius est exclusio alterius. In 2 Lewis' Sutherland Statutory Construction, p. 1137, it is said: "What the law requires for the protection of the taxpayer * * * is mandatory and cannot be regarded as directory merely." The council had no right to disregard the plain provisions of the charter in contracting, because "The requirement of competitive bidding in the letting of municipal contracts is uniformly construed as mandatory * * * and non-observance will render the contract void and unenforcible." McQuillen, Municipal Corporations (2d Ed.), Vol. 3, sec. 1287. In accord: Dillon, Municipal Corporation (5th Ed.), Vol. 2, sec. 801; Tiedeman on Municipal Corporations, sec. 172; Abbott. Municipal Corporations, sec. 262; Donnelly, The Law of Public Contracts, sec. 112; Am. & Eng. Encyc. of Law (2d Ed.), Vol. 20, page 1165; and 44 Corpus Juris, sec. 2490; City of Moundsville v. Yost, 75 W. Va. 224, 83 S. E. 910; Twohy Bros. Co. v. Ochoco Irr. Dist., 108 Ore, 1, 210 P. 873, 216 P. 189; Wait v. So. Oil & Tar Co., 209 Ky. 682, 273 S. W. 473; Anderson v. Fuller, 51 Fla. 380, 41 So. 684; McCloud v. City of Columbus, 54 Ohio St. 439, 44 X. E. 95; Chippeiva Bridge Co. v. City of Durand, 122 Wis. 85, 99 N. W. 603; Ardrey v. City of Dallas, 13 Tex. Civ. App. 442, 35 S. W. 726; Flinn v. City of Philadelphia, 258 Pa. St. 355, 102 A. 24; and Thrasher v. City of Kirksville, 204 S. W. (Mo.) 804. The reasons for the requirement of competitive bidding are thus stated: "Such requirements are for the purpose of inviting competition, to guard against favoritism, improvidence, extravagance, fraud and corruption in the awarding of municipal contracts, and to secure the best work or supplies at the lowest price practicable, and are enacted for the benefit of property holders and taxpayers * * * and should be so construed and administered as to accomplish such x>urpose fairly and reasonably with sole reference to the public interest. McQuillen, supra, sec, 1286. In accord: Am. & Eng. Encyc. of Law, supra; 44 Corpus Juris, supra; and Donnelly, supra, sec. 113. In an action on such contract, made in violation of the requirements of the charter, the city may plead its illegality in defense. Dillon, supra; Tiedeman on Municipal Corporations, supra; Twohy Bros. Co. v. Ochoco Irr. Dist., supra. "And where there is a statute or charter provision exacting competitive bidding, the municipality cannot provide by ordinance that, for a certain kind of work, the contractor shall be paid a fixed price without reference to any proposals or bidding." McQuillen, supra, sec, 1287.

The fact that the plaintiff has fully performed the contract and substantial benefits have thereby been conferred upon the city in no wise alters the rule. "The mere fact that the municipality has received the benefits of the contract which has been performed by the...