Diamond v. City of Mankato

• Decision Date: 27 February 1903
• Docket Number: 13,206 - (220)
• Citation: 93 N.W. 911,89 Minn. 48
• Parties: JOHN DIAMOND v. CITY OF MANKATO and Others
• Court: Minnesota Supreme Court

93 N.W. 911

89 Minn. 48

JOHN DIAMOND v. CITY OF MANKATO and Others

Nos. 13,206 - (220)

Supreme Court of Minnesota

February 27, 1903

Appeal by defendants from an order of the district court for Blue Earth county, Lorin Cray, J., denying a motion for a new trial. Affirmed.

SYLLABUS

Street Paving -- Petition -- Award of Contract.

The charter of the city of Mankato provides that the paving of its streets at the cost of lots benefited thereby may be initiated on the petition of a majority of the lot owners but the city council may, in cases where in its judgment public necessity requires it, make the improvement without any petition. The work, however, must be awarded to the lowest reliable bidder, after advertising for bids for the work on the basis of the plans and specifications therefor. Held:

Public Necessity -- Discretion of Council.

1. The power to determine the question whether public necessity requires the making of such improvement without a petition therefor is committed to the discretion of the council, and its decision in the premises is final, unless it is made to appear that its action is arbitrary or fraudulent.

Evidence.

2. It does not appear from the evidence that the council acted either arbitrarily or fraudulently in ordering the work here in question.

Bids for Work -- Specifications.

3. Where, as in this case, municipal authorities can only let a contract for public work to the lowest bidder after advertising for bids, the specifications must be so framed as to secure fair competition upon equal terms to all bidders. And any contract entered into with the best bidder containing substantial provisions beneficial to him which were not included in the specifications, is void, for it is not the contract offered to the lowest bidder by the advertisement.

Decision Sustained.

4. The finding and conclusion of the trial court to the effect that this rule was violated in awarding the contract in this case are sustained by the evidence.

C. O. Dailey and Wm. N. Plymat, for appellants.

M. J. Severance, Jean A. Flittie, and H. L. & J. W. Schmitt, for respondent.

OPINION

START, C.J.

The plaintiff is a taxpayer of the city of Mankato, and the owner of land fronting on that portion of Broad street lying between Lincoln and Vine streets, in the city, which the proper municipal officers determined to pave with asphalt. He brought this action to restrain such officials from entering into any contract on behalf of the city for the making of such improvement. On April 18, 1902, a temporary injunction was issued in the action restraining such officials from entering into any contract for the proposed work whereby any liability on the part of the city would be incurred therefor, which would necessitate payment during the fiscal year of 1902, or any following fiscal year whatever, from the current funds of the city, except such as could be lawfully raised by special assessments upon property benefited by the improvement other than property belonging to the city. After the injunction was served, and on April 23, 1902, such officials entered into a contract for the work with the Barber Asphalt Paving Company, hereafter designated as the "contractor," which contained this provision:

"Said payments to be made after the completion of the said work, and acceptance by the board of public works out of money lawfully raised by special assessment upon real estate and property benefited by said improvements other than real estate and property belonging to said city of Mankato."

On May 17, 1902, the plaintiff made and served a supplemental complaint, alleging the making of the contract and other facts which it is claimed rendered the contract void, and praying that, in addition to the relief asked for in the original complaint, the contract be adjudged null and void. The cause was tried by the court without a jury, and findings of fact and conclusions of law were made to the effect that the plaintiff was entitled to the relief demanded. The defendants appealed from an order denying their motion for a new trial.

1. The trial court, after finding certain evidentiary facts, made this further finding:

"That because of the matters and things herein found it was not necessary, proper or advisable that said improvement be ordered or contracted for, all of which at all times * * * [was] well known to the defendant officers of said city. That the defendants * * * did not in good faith consider that it was necessary, proper, or advisable that said improvement be made * * * or that the public interests would be best subserved thereby."

It is the contention of the defendants that this finding of the ultimate facts as to the necessity for ordering the improvement made is not justified by the evidence.

The charter of the city provides that the paving of any of its streets at the charge of the land to be benefited by the improvement may be initiated upon a petition signed by a majority of the property owners who would probably be assessed for the expenses thereof, and that the council shall not be required to proceed with the work unless such a petition is presented to it.

"Provided that the common council, by a two-thirds vote of its members, may in cases where in the judgment of said council, the public necessity requires it, order the matter of any contemplation [sic] improvement and the advisability of doing the same to the board of public works for their consideration, without petition." Sp. Laws 1891, page 418 (c. 47, subc. 6, tit. 2, § 5).

The plaintiff claims that the proviso only authorizes the council to initiate the improvement on its own motion when some emergency arises "where, on account of the danger to public safety, there is no time or opportunity to wait for a petition to be filed and acted upon under the general provisions of the charter." Clearly this is not a correct construction of the proviso. The paving of a street is not an emergency remedy for the repair of a dangerous public way, but a permanent improvement thereof. The meaning of the charter provisions in question is quite obvious. They provide in effect that the council is not bound to take any steps to secure the making of the proposed improvement, unless the petition therefor is signed by a majority of the property owners to be affected thereby, but if in the exercise of its fair and deliberate judgment, evidenced by a two-thirds vote of its members, it concludes that the public necessity requires any particular authorized improvement to be made, the council may initiate and carry on the work without any petition therefor. The power to determine the question whether public necessity requires a particular improvement to be made without any petition therefor is committed by the charter, not to the courts, but to the sound discretion of the city council. And its decision in the premises is final, unless it is made to appear that its action is arbitrary or the result of fraud or of demonstrable mistake of fact. Rogers v. City of St. Paul, 22 Minn. 494; State v. District Court of Ramsey Co., 29 Minn. 62, 11 N.W. 133; State v. District Court of Ramsey Co., 33 Minn. 164, 22 N.W. 295; Janeway v. City of Duluth, 65 Minn. 292, 68 N.W. 24.

Hence the question is not whether there was evidence fairly tending to support the finding that public necessity did not require the paving of the street in question, or whether the finding complained of is manifestly against the weight of the evidence. The question is, does the evidence clearly establish the fact that the city authorities, in ordering the improvement, acted arbitrarily or fraudulently, or under a demonstrable mistake of fact? There was no petition for the paving of the street in this case, and the work was ordered by the requisite vote of the council, against the protest of a large majority of the property owners whose land would be assessed for the expenses thereof. The question whether the finding of fact now under consideration is sustained by the evidence must be tested by the rule we have stated, and not by the ordinary rule applicable to findings of fact by judge or jury. We have examined the evidence...