Price v. City of Fargo

• Decision Date: 01 February 1913
• Citation: 139 N.W. 1054,24 N.D. 440
• Parties: PRICE v. CITY OF FARGO et al.
• Court: North Dakota Supreme Court

24 N.D. 440

139 N.W. 1054

PRICE

v.CITY OF FARGO et al.

Supreme Court of North Dakota.

Feb. 1, 1913.

Syllabus by the Court.

In the absence of charter or statutory requirement, municipal contracts need not be let under competitive bidding. In such cases the corporate authorities are only required to act in good faith and to the best interests of the municipality.

Where bids are requested, but there is no law requiring competitive bidding, nor that the contract be let to the lowest bidder, such contract need not be let to the lowest bidder, and, where it is awarded to a higher bidder, a taxpayer cannot have the contract set aside where there is no proof of fraud.

Article 18, c. 62, Laws of 1905 (article 18, c. 30, Political Code of 1905), which provides for competitive bidding and the prior estimate of probable cost in the case of certain municipal contracts, does not apply to municipal contracts for the erection of filtration plants and similar buildings.

Appeal from District Court, Cass County; Pollock, Judge.

Action by W. J. Price against the City of Fargo and others. From a judgment for defendants, plaintiff appeals. Affirmed.

The plaintiff has appealed from a judgment of the district court of Cass county refusing to grant him injunctional relief, and asks for a trial de novo in this court. He sues as a taxpayer, and the prayer of his complaint is as follows: “That the defendant city of Fargo, the defendant V. R. Lovell, mayor of said city, E. R. Orchard, auditor of said city, and defendant C. H. Mitchell, treasurer of said city, and each and all of them, may be perpetually enjoined from certifying and selling the bonds of said city voted as in this complaint alleged, and applying the proceeds of said bonds, or any part thereof, to the payment of the cost of construction of said water filtration plant under the terms of said contract, and be enjoined from doing anything toward the construction and erection of said water filtration plant and from in any manner carrying out with the defendant James Kennedy, the contract hereinbefore described, and that the defendant James Kennedy be perpetually enjoined from further proceeding with the construction and erection of said water filtration plant; and for such other and further relief as in equity plaintiff may be entitled to.”

The facts of the case are substantially as follows: On the 6th day of July, 1910, there was held in the city of Fargo a special election for the purpose of voting for waterworks bonds to aid in the construction of a filtration plant. At this election the following question was duly submitted to the voters of the city: “Shall the city of Fargo issue bonds in the sum of $65,000 bearing interest at the rate of five per cent. per annum, for the purpose of paying the cost of the machinery and materials for and the construction of a waterworks station and filtration plant, making the necessary connections with the present existing water mains and water plant and installing therein the necessary pumps, machinery, appliances and apparatus for the operating of the same, said plant and machinery to be used for the purpose of furnishing to the inhabitants of the city of Fargo a pure water supply, and for the purpose of fire protection for said city?” This proposition was carried by a vote of 648 to 78. On the 28th day of March, 1911, at a special meeting of the said city council, the city engineer submitted plans and specifications for a mechanical filtration plant, which plans consisted of 5 sheets, numbered from 1 to 5, inclusive, and specifications for said proposed plants, consisting of 89 pages, and said council passed a resolution to the effect “that the plans and specifications as submitted by the city engineer for a filtration plant be adopted and filed.” At the same meeting the following motion was passed: “That the auditor be instructed to advertise for the construction of a filtration plant in accordance with the plans and specifications on file, bids to be submitted on or before five o'clock p. m. on April 27, 1911.” The plans and specifications of the city engineer, above referred to, however, were not accompanied by an estimate of the probable cost of construction, and the city council did not at any time approve by resolution an estimate of the probable cost of the plant described in said plans and specifications.

On March 30, April 1, and April 5, 1911, the city auditor published in the official paper of the said city, the following advertisement for bids: “Proposal for Bids. Sealed proposals will be received until five o'clock p. m. of Thursday, April 27, 1911, for erecting and furnishing a complete water purification plant of six million gallons daily capacity, four million gallons daily capacity of which will be constructed at this time including excavations, foundations, concrete masonry reservoirs and filters and headhouse, together with mechanical equipment, and all piping and appurtenances complete ready for occupancy. The following are the approximate areas covered by the more important structures: Headhouse, 2,800 square feet; filters, 3,700 square feet; coagulating reservoirs, 15,000 square feet; clear water reservoirs, 3,700 square feet. The reservoirs are approximately from twelve to twenty feet down, mostly of reinforced concrete construction with concrete and brick with tile roof. Filters of reinforced concrete. Specifications and general plans may be obtained at the office of the city auditor of the city of Fargo after this date. A certified check on a Fargo, North Dakota, bank in the sum of five per cent. of the amount of the proposal, deposited in accordance with the terms of the specifications will be required of each bidder. A deposit of fifteen dollars will be required for each set of plans and specifications given out, which will be refunded upon return of said sets in good condition. A surety company bond by a company doing business in the state of North Dakota for an amount equal to fifty per cent. of the contract will be required of the successful bidder. The right is reserved to reject any and all bids. [Signed] E. R. Orchard, City Auditor.” No further or other advertisement for bids was made. No bids appear to have been received prior to the 18th day of April, 1911.

On the said 18th day of April, 1911, at an adjourned, regular meeting of the city council, a motion was carried “that the time for receiving bids for filtration plant, headhouse, pumping station, boilers, engines, etc., which was heretofore designated as April 27th, be extended to the 8th day of May, 1911, and that the city engineer be and is hereby directed to notify bidders of such extension of time.” On the 27th day of April, 1911, at a meeting of the city council of said city, a motion was passed authorizing the employment of Chas. B. Burdict, an expert engineer, and member of the firm of consulting engineers of Alvord & Burdict, of Chicago, Ill., to aid the city council and the city engineer in determining which was the lowest bid for the construction and erection of said water filtration plant. On the 8th day of May, 1911, at an adjourned meeting of the city council, the bids of all bidders for the construction and erection of said plant were opened, and a motion was passed referring all of said bids to the city engineer, the expert consulting engineer, Chas. B. Burdict, and the members of the fire and water committee, to examine and report upon as to the merits and value of the respective bids on the night of May 12, 1911. The bids received were five in number, and were substantially as follows: (1) Pittsburg Filter Manufacturing Company, check accompanying same, $6,500. Proposition No. 1 includes items 34-36-37-40-41-43; prints 817-31-32-33-34-35-102-69-104-54-106-42-101-65; 138-72-391; 91-105; 55-89; 51-102; 67-107; 52-90-41-all complete for the sum of $115,700. Proposition No. 2, add to the above price $1,600. Proposition No. 3, add to the above price $2,200. Proposition No. 4, add to the above price, $520. Proposition No. 6, deduct $375. Proposition No. 7, deduct $300. Proposition No. 8, deduct $200. Proposition No. 9, deduct $450. Proposition No. 10, deduct $1,500.

(2) Thomas F. Powers & Co., check accompanying same, $6,000. Thomas F. Powers, in conjunction with Pittsburg Filter Manufacturing Company, agree to erect plant complete for $109,300.

(3) S. Birch & Sons Construction Company, check accompanying same, $6,100. S. Birch & Sons Construction Company, bidding with Pittsburg Filter Manufacturing Company, agree to construct plant complete for $118,000.

(4) Bid of James Kennedy, hereinafter set out in full.

(5) Fargo Plumbing & Heating Company, checks $6,000, $750, $600. Proposes to furnish all materials, perform all labor, as per engineer's specifications, and our list of exhibits does not include low lift pumps, in the sum of $130,507. The above figures include the boilers, pumps, and stokers, as stated in bid No. 1, of poser equipment. If desired to take advantage of bids 2, 3, 4, and 5, the amounts may be added or deducted as stated therein.

Bid No. 1. Pumping Machinery. One horizontal cross-compound high-duty, Corliss pumping engine, 4,000,000 capacity. Three 150-horse power water tube boilers and 3 chain grate stokers erected complete as per engineer's specifications-all for the amount of $22,575.

Bid No. 2. Horizontal cross-compound high-duty Corliss pumping engine, 4,000,000 capacity. Two 250 high-duty water tube boilers and 2 chain grate stokers-all for the price of $22,335.

Bid No. 3. One horizontal cross-compound high-duty Corliss pumping engine, capacity 4,000,000 gallons. Three 150-horse power water tube boiler. Three chain grate stokers-all for the price of $22,447.

Bid No. 4. One horizontal cross-compound high-duty Corliss pumping engine, 4,000,000 gallons capacity. Two 250-horse power water tube boilers, built for a pressure of 185 pounds. Two chain grate stokers-for the price of $21,393.

Bid No....