Lee v. City of Ames

• Decision Date: 12 May 1925
• Docket Number: 36469
• Citation: 203 N.W. 790,199 Iowa 1342
• Parties: EMMA M. LEE et al., Appellants, v. CITY OF AMES, Appellee. IN RE APPEAL OF EMMA M. LEE (and three other cases)
• Court: Iowa Supreme Court

203 N.W. 790

199 Iowa 1342

EMMA M. LEE et al., Appellants, v. CITY OF AMES, Appellee.

IN RE APPEAL OF EMMA M. LEE (and three other cases)

No. 36469

Supreme Court of Iowa, Des Moines

May 12, 1925

Appeal from Story District Court.--E. M. MCCALL, Judge.

IDENTICAL objections made by four different property owners to certain paving assessments were overruled by the city council of Ames. Upon appeal to the district court, the assessments were affirmed. This appeal is from the decree of the district court. The cases were consolidated for the purpose of trial in the district court, and are presented in like manner on this appeal.

Affirmed.

Lee & Garfield and R. L. Bryant, for appellants.

J. Y Luke, for appellee.

ARTHUR J. FAVILLE, C. J., and EVANS and ALBERT, JJ., concur.

OPINION

ARTHUR, J.

The paving project involved started in the fall of 1915, when a resolution of necessity for paving some principal streets of the city of Ames was adopted by the city council. On September 20, 1915, construction was ordered. In December plans and specifications were approved. Clauses of the specifications having some bearing on matters in controversy are:

"(1) * * * and no bidder will be awarded the contract for extra excavation unless he receives the award for the corresponding paving. Any bidder submitting prices on any one of the different types of paving must also submit prices on curb and gutter and extra excavation.

"(2) The price per square yard for paving includes the furnishing of all materials and labor, doing the excavation for a depth equal to the thickness of the pavement, preparing the subgrade, constructing concrete base, constructing the pavement surface, adjusting all manholes, lamp holes, valve and curb boxes, and catch basin covers within the lines of the pavement, so as to fit the new grade, and doing all other work incident to the construction and completion of the pavement.

"(3) The price per cubic yard for extra excavation shall include the excavation, loading, hauling (not to exceed 2,000 feet), and disposition of the material in accordance with Section 5, Paragraph 1, and all other work incident to the doing of the extra excavation required. If the length of haul is over 2,000 feet, overhaul will be allowed as specified.

"(4) The price bid per square yard for pavement shall include the excavation of the material for a depth equal to the thickness of the pavement, materials that must be removed in excess of this amount will be paid for at the price bid for extra excavation."

The advertisement for bids, published early in January, 1916, contained the following clauses:

"Sealed bids will be received until 6 o'clock P. M., January 17, 1916, at the office of A. B. Maxwell, city clerk of Ames, Iowa, for curbing, paving and doing the necessary grading and incidental work on the following named streets. * * * All bids received by the city clerk will be publicly opened at 8 o'clock P. M., read and a record made of same. No permission will be given to withdraw or modify any proposal after the clerk has announced time for filing bids is closed. The council reserves the right to reject any and all bids or to let separate contracts on one or more of the different types of pavement, for which bids are received, or to award the contract for the curb and gutter work separately from the paving contract. * * * and no bidder will be awarded the contract for extra excavation unless he receives the award for the corresponding paving. Any bidder submitting prices on any one of the different types of paving must also submit prices on curb and gutter and extra excavation."

On January 16, 1916, at a meeting of the council, the bids were opened and read. The bids contained proposals on three separate items: namely, for paving, curbing and guttering, and "extra excavation." The advertisement called for bids upon nine different types of paving: namely, vitrified brick, creosoted wood block, six different kinds of asphalt, and bitulithic pavement. There were nine different bidders upon the paving, two upon curb and gutter alone, and eleven bids on extra excavation. All of the pavement bids, except one, contained proposals for brick paving. Most of them also contained proposals for wood block and asphalt paving. There were two bids on bitulithic pavement: one by the Des Moines Asphalt Paving Company, at $ 1.89 1/2 per square yard, and the other by James Horrabin & Company, at $ 1.92 1/2 per square yard. Eleven of the twelve bidders submitted bids on extra excavation, ranging from 34 cents to 50 cents per cubic yard. The bid of the Des Moines Asphalt Paving Company was 50 cents per cubic yard, or a total of $ 6,544. The Des Moines Asphalt Paving Company was the low bidder on bitulithic paving, with a price of $ 1.89 1/2 per square yard. Sam Bowers, who made no bid on the paving or curb and gutter, was the low bidder on the extra excavation, at a price of 34 cents per cubic yard. The council made no decision at this session, and adjourned to meet three days later.

At the meeting of the council on January 19, 1916, at which there were present the mayor, Parley Sheldon, and councilmen Stultz, Rice, Gilchrist, Murray, Corlett, and Spinney, it was moved by Corlett "that the contract be awarded to the Des Moines Asphalt Paving Company for paving with bitulithic pavement." The motion was carried, by unanimous vote of the council. At this meeting of the council, a formal resolution was adopted, by unanimous vote of the council, accepting the bid of the Des Moines Asphalt Paving Company for the improvement of certain streets and avenues by paving with bitulithic pavement, and instructing the mayor to enter into contract, on behalf of the city, with said company for the construction of said improvement.

On January 31, 1916, at a meeting of the council, Mayor Parley Sheldon, in a written communication, returned the resolution awarding the contract for paving to the Des Moines Asphalt Paving Company, without approval, and stated as his reasons therefor, in substance, that the bid accepted was 6 1/2 cents higher per square yard than the bid of the same company for asphaltic paving, and stated that:

"I object to and withhold my assent from the same because I regard the expenditure of the public and private funds largely in excess of the bid of same firm for a pavement more durable and less expensive in maintenance during its economical life."

At a meeting of the council on February 7, 1916, the resolution awarding the contract for paving to the Des Moines Asphalt Paving Company, passed on January 19, 1916, and vetoed by the mayor, was adopted and passed, over the objections of the mayor, by unanimous vote of the council; and the contract was signed by the mayor, on behalf of the city, and by the Des Moines Asphalt Paving Company, and by a formal resolution approved by unanimous vote of the council.

The records of the council do not disclose any proceedings in reference to the contract for the extra excavation; but the contract itself shows that the contract for extra excavation was made with the same company, at the price of 34 cents per cubic yard. This was not in a separate contract, but was included in the contract for the paving improvement.

On the trial, appellants produced as witnesses the city clerk, A. B. Maxwell, and Parley Sheldon. Maxwell produced and identified copies of the various bids, and testified that the bid of the Des Moines Asphalt Paving Company for extra excavation was 50 cents per cubic yard, and amounted, on the estimate furnished, to $ 6,544; that the bid of Sam Bowers for extra excavation was 34 cents per cubic yard, totaling $ 4,449.92; that the contract for paving entered into with the Des Moines Asphalt Paving Company contained also a contract for extra excavation at 34 cents per cubic yard. The witness also testified that his record contained nothing about negotiations with reference to the extra excavation contract, outside of the contract itself.

Parley Sheldon testified that John MacVicar was before the council, representing the Des Moines Asphalt Paving Company, and that:

"When the matter was up for final consideration before the council, it developed that there was a difference in the bids for the excavating, between the bid of the Des Moines Asphalt Paving Company, and Sam Bowers'. The Bowers bid was considerably lower than the Des Moines Asphalt Paving Company for that part of the contract, and Mr. MacVicar made the proposition that, 'if he were awarded the contract, he would meet the bid of Mr. Bowers.'"

Witness testified that the council accepted the proposition made by MacVicar. Witness also testified that he was not in favor of bitulithic paving; that he did not veto the resolution simply because the Des Moines Asphalt Paving Company was given the contract for extra grading at the same price as the bid of...