Kelling v. Edwards
| Citation | 134 N.W. 221,116 Minn. 484 |
| Decision Date | 19 January 1912 |
| Docket Number | 17,336 - (183) |
| Parties | JAMES KELLING and Others v. H. P. EDWARDS and Another |
| Court | Minnesota Supreme Court |
Action in the district court for Martin county by five landowners over whose land the proposed ditch would be constructed, in their own behalf and for the benefit of all other persons landowners, whose lands would be affected by, and assessed for, the construction of the ditch, against H. P. Edwards, as county auditor of that county, and as an individual, and L P. Axelson. The complaint prayed for a cancelation of the contract executed by the county auditor and by defendant Axelson for the construction of county ditch No. 24; for an injunction against Axelson to restrain the performance of the contract; for an injunction against Edwards to restrain filing with the register of deeds any statement, statutory or otherwise, showing the cost of the ditch or the amount to be charged against plaintiffs' lands, or from performing the contract; or from placing the amount of assessments or of benefits, or of cost of the ditch, upon the tax lists of the county; or from taking any further steps in the ditch proceedings until the auditor should readvertise for bids for its construction, according to law.
Defendant Edwards answered separately. Among other matters, his answer alleged defendant Axelson offered and agreed to use only first quality hard burned clay tile; that the other bidders named in the opinion offered to use cement tile only; that in his advertisement the answering defendant expressly reserved the right to reject any and all bids offered. His answer set up that the three other bidders named in the opinion had been either contractors or subcontractors on other ditches built by the county, and had been in default in the performance of their contracts; that Axelson had previously executed a similar contract with the county satisfactorily and without default; that he had been county auditor for eight years continuously, during which time a large number of public ditches had been built, and he had found the cost of inspection of ditches constructed of cement fully ten per cent. greater than when they were constructed of clay tile that he learned from experience and from competent civil engineers there is no known method of satisfactorily inspecting cement tile and determining whether they are of poor quality; that in his opinion the cost of supervision and inspection, if the ditch were constructed of cement tile would be $1,000 greater than if constructed of clay tile; that in the exercise of his best judgment and discretion he determined that the three other bidders named in the opinion were not, nor were either of them, the lowest responsible bidder, and that none of their bids was lower than that of Axelson, and Axelson was the lowest responsible bidder taking into account the cost of inspection and other matters properly to be considered; that therefore he accepted Axelson's bid and awarded him the contract.
Defendant Axelson answered separately. The substance of his answer will be found in the opinion.
The plaintiffs obtained an order directing defendants to show cause why they should not be enjoined from carrying the contract into effect. On the return day the matter was submitted, upon the pleadings and affidavits and counter-affidavits, to Quinn, J., who made findings and denied the temporary injunction asked for. From the order denying the injunction, plaintiffs appealed. Affirmed.
Bid for construction of county ditch -- security for bid.
Requirements of Laws 1905, c. 230, § 14, as to the filing of a certified check for ten per cent. of the amount of the bid with a bid for the construction of a drainage ditch, held sufficiently complied with.
Award of contract -- lowest responsible bidder.
In awarding a contract under this statute, the county auditor, in determining who is the "lowest responsible bidder," is not limited to an inquiry as to financial responsibility, but may, in the exercise of the discretion vested in him, inquire also as to the fitness and ability of the bidders to do and perform the particular work.
Award of contract -- reasons for award sufficient.
The contract awarded in this case, though not given to the lowest bidder, was not invalid as in violation of the statute; the reasons assigned by the auditor for such award being sufficient to justify his action.
Reduction of bid after award.
The fact that the bid was reduced after the award had been made and before the contract had been executed did not affect the validity of the award or the contract executed pursuant thereto.
Refusal to enjoin -- no abuse of discretion.
The trial court did not abuse its discretion in refusing a temporary injunction restraining the performance of the contract so awarded.
Knox & Faber, for appellants.
Dean & Palmer, for respondents.
This is an appeal by the plaintiffs from an order of the district court of Martin county, denying a motion for a temporary injunction in an action to set aside as null and void and to restrain the further performance and carrying into effect of a contract for the construction of a certain drainage ditch designated as ditch No. 24 of the said county.
The plaintiffs are landowners whose lands will be affected by and assessed for the costs of the construction of the said ditch. The defendant Edwards is the auditor of the said county, and the defendant Axelson is the contractor to whom the defendant Edwards awarded the contract against the further performance of which the injunction is sought.
The complaint, after alleging the legal establishment of the said ditch pursuant to Laws 1905, p. 303, c. 230 (R.L. Supp. 1909, §§ 2651 -- 44 to 2651 -- 106) and acts amendatory thereof, and the subsequent proceedings up to the time of the filing of bids and the award thereon, all of which are alleged to have been regular, proceeds to attack the award and the contract subsequently entered into between the two defendants for the construction of the said ditch -- the grounds of such attack being (1) that the defendant Axelson's bid was not accompanied by a certified check, payable to the auditor, for ten per cent. of the amount of his bid, as required by Laws 1905, p. 318, c. 230, § 14 (R.L. Supp. 1909, § 2651 -- 57); (2) that the said Axelson was not the lowest responsible bidder; and (3) that after the award had been made at the public letting, the auditor, without notice and without any reletting of the job, secretly and privately entered into a contract with the said Axelson for the construction of the said ditch, and that this contract is Axelson's only authority for doing the work in question.
The following facts are either conceded or established:
On June 3, 1911, the defendant Edwards, acting in his capacity as auditor of Martin county, advertised for bids for the construction of the said ditch No. 24, stating in such advertisement that on June 30, 1911, he would receive bids for the construction of such ditch and would let the contract therefor to the lowest responsible bidder, the work to be done and completed according to the plans and specifications of the engineer. These plans and specifications in terms authorized the use of either clay or cement tile. On the day specified by such advertisement a number of bids were filed, the four lower being as follows: L. P. Axelson, clay tile to be used, $21,520; Ceylon Cement Tile Company, cement tile to be used, $20,881.61; Sherburn Cement Drain Tile Company, cement tile to be used, $20,860; Fairmont Cement Stone Manufacturing Company, cement tile to be used, $20,690. All of these bids were regular in form, and, with the exception of Axelson's, each was accompanied by a certified check upon a solvent bank, payable to the auditor, for ten per cent. of the amount of the bid; the highest of these four bids being $1,479.50 less than the estimated total cost of the work.
Axelson's bid was accompanied by two checks, one for $1,000 and the other for $2,000; both being certified by a solvent bank, but being payable to L. P. Axelson, and by him indorsed to H. P. Edwards without the latter's official designation as auditor of Martin county, and the $1,000 check not being signed by the drawer thereof, which omission, however, was subsequently attempted to be cured by Axelson's signature of such check, when his attention was called to the defect by the auditor.
Upon these bids the auditor, on June 30, 1911, awarded the contract to Axelson for the sum of $21,520; such award being made verbally in the presence of the other bidders. But thereafter, on or before the day on which the contract was executed, Axelson presented to the auditor a writing as follows:
And on July 11, 1911, Edwards, in his capacity as auditor of the said county, entered into a formal written contract with Axelson, which, after reciting the award of the contract to him upon his bid of $21,520, and also a relinquishment by him of $660 of the amount of such bid, proceeded to express the agreement of the parties in all other respects in due form and according to law. On July 24, 1911, Axelson filed with the auditor a good and sufficient bond for the performance of his contract, which bond was duly approved. Prior to this however, Axelson had already done a substantial portion of the work, and at the...
To continue reading
Request your trial