City of Des Moines, Iowa v. Welsbach Street Lighting Co. of Delaware

• Decision Date: 20 May 1911
• Docket Number: 3,407.
• Citation: 188 F. 906
• Parties: CITY OF DES MOINES, IOWA, v. WELSBACH STREET LIGHTING CO. OF DELAWARE.
• Court: U.S. Court of Appeals — Eighth Circuit

188 F. 906

CITY OF DES MOINES, IOWA, v. WELSBACH STREET LIGHTING CO. OF DELAWARE.

No. 3,407.

United States Court of Appeals, Eighth Circuit.

May 20, 1911

Robert O. Brennan (J. M. Parsons, on the brief), for plaintiff in error.

N. T Guernsey (Alonzo C. Parker and William E. Miller, on the brief), for defendant in error.

Before SANBORN and ADAMS, Circuit Judges, and WM. H. MUNGER District judge.

WM. H MUNGER, District Judge.

On the 2d day of April, 1904, the city of Des Moines and the Welsbach Street Lighting Company entered into a written contract, by the terms of which said Welsbach Street Lighting Company agreed to furnish to the city of Des Moines improved Welsbach street lights according to specifications stated for the term of 10 years from and after the 1st day of May, 1904. The Welsbach Street Lighting Company was to furnish and erect at its own cost and expense first-class iron posts and boulevard lanterns and keep the same in good repair, and to place thereon its improved attachments for the Welsbach system of street lighting, and to furnish at its own cost and expense all mantels, aluminum material, and labor to be used in lighting extinguishing, cleaning, and repairing said lamps and fixtures. The lamps were to be placed and maintained in such locations along the lines of the gas mains in the street and thoroughfares of the city of Des Moines as should be directed by the board of public works of said city, and should be not less than 800 in number and as many more as should be ordered by said party of the first part. In consideration of which the city agreed to pay to said lighting company $22 per lamp per year, payable monthly as the service was performed. The Welsbach Street Lighting Company fully performed the contract upon its part, installed and maintained such lamps in addition to the 800 as were directed by the board of public works until on January 1, 1908, there were so installed and maintained 1,117 and on January 1, 1909, 1,133. The city made payments according to the terms of the contract until the 1st day of May, 1908, when it ceased to make payments, and the lighting company brought this action in the Circuit Court to recover the monthly payments for the months of May, June, July, August, and September, 1908.

The city defended the action upon three grounds: (1) That the contract was invalid for the reason that it was entered into without first advertising for bids; (2) that it was invalid as there was in existence, at the time that the contract was entered into, an ordinance of the city of Des Moines, fixing rates which the city should pay for street lighting at a less sum than that agreed upon in the contract; and (3) that the contract in question was the grant of a franchise to the Lighting Company which the city was not authorized to grant excepting upon a vote by the people.

A jury was waived and the cause tried to the court upon an agreed statement of facts and judgment rendered for plaintiff, from which judgment the city prosecutes error.

The several provisions of the statute (Code of 1897) claimed as applicable to a consideration of this case are the following:

'Sec. 867. Bids. It shall advertise for bids and make all contracts on behalf of the city for all work, and for material and work for public improvements in excess of two hundred dollars, whenever the same shall be ordered by the council or voted for at any election. Proposals for bids shall be published once each week for two weeks in two of the daily newspapers therein, which shall be completed at least two weeks before the making of any contract, which proposals shall state the amount and kinds of material to be furnished, the kind of improvement, and the time and conditions upon which bids will be received, all of which may be rejected. All contracts shall be made with the lowest responsible bidder, but it shall not be necessary before proposals are published or bids received to determine specifically the kind of material to be used. All contracts made by said board shall be subject to the approval of the council.'

'Sec. 869. Superintend lighting. It shall advertise for bids and make contracts for the lighting of the streets, alleys, public grounds and buildings, and shall have entire control, management and direction of the lamps, lights, lighting material and persons charged with the care

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