Reid v. Trowbridge

• Decision Date: 21 January 1901
• Citation: 78 Miss. 542,29 So. 167
• Court: Mississippi Supreme Court
• Parties: JOHN B. REID ET AL. v. WALTER L. TROWBRIDGE ET AL

29 So. 167

78 Miss. 542

JOHN B. REID ET AL. v. WALTER L. TROWBRIDGE ET AL

Supreme Court of Mississippi

January 21, 1901

FROM the chancery court of Warren county. HON. WILLIAM C. MARTIN Chancellor.

Reid and another, appellants, were complainants in the court below; Trowbridge and others were defendants there.

The city of Vicksburg, in the early part of May, 1899, made a contract with the Vicksburg Railroad, Power & Manufacturing Company for lighting the streets of the city by electricity. The city was to pay $ 100 per annum for each of 125 street lights, and the contract was to last ten years. At the time of the execution of the contract the city was being lighted under a previous one made in 1895 with the Vicksburg Electric Light Company at a cost of $ 102 per light, and which would not have expired for two years. The previous contract had been assigned to the Vicksburg Railroad, Power &amp Manufacturing Company. Appellants began the suit May 17 1899, to enjoin operations under the latter contract for the following causes: (1) Under the act of March, 1888, the city could not make such a contract except after submitting it to the qualified voters. (2) If this is not true, then it must have advertised for bids. (3) It guarantees a special levy of taxes to meet the obligations incurred. (4) It is unreasonable and oppressive; (5) It grants an exclusive right. (6) It was entered into for the purpose of making an appropriation, and giving the aid of the city to the street railway company. (7) In awarding the contract the council acted arbitrarily, without exercising any discretion whatever, which made it illegal. (8) The company suppressed a contemplated bid for the contract. On motion of appellees the injunction was dissolved. From that decree this, appeal was taken by appellants.

Judgment affirmed.

Catchings, Hudson & Catchings; Catchings & Catchings, and Magruder & Bryson, for appellants.

Miller, Smith & Hirsh, Henry & Scudder, Shelton & Brunini, McLaurin & Anderson, and Voller & Mounger, for appellees.

Argued orally by T. C. Catchings and L. W. Magruder, for appellants, and by J.. Hirsh, for appellee.

OPINION

CALHOON, J.

The city of Vicksburg is not under the municipal chapter of the code of 1892, and so the contractual powers of her governing board must be controlled by her charter. In the case before us the question arises, to be first disposed of, whether that board could, under that charter, and under a legislative act of 1888, make a valid contract for electric lighting without advertising for bids and without submitting it to popular vote. On this and all the questions in controversy counsel on either side have exhausted authority in their briefs, which are monuments of laborious research and professional skill and ability. To them we point the curious for all the learning on the subject and proceed to state conclusions after carefully examining the leading citations they offer.

The appellants, two gentlemen who are citizens and taxpayers of the city, say that the contract they complain of in this record is ultra vires and void, and that its execution should be perpetually prohibited by injunction. It must be premised that, before this contract was made, the city was trader a contract, whether valid or void it is bootless to inquire, with a corporation known as "The Vicksburg Electric Light Company," the term of which then lacked two years of expiring; that this contract had been bought by another corporation known as "The Vicksburg Railroad, Power & Manufacturing Company," an appellee in this cause, and that the new contract, the one with the latter being the one complained of, extended the former for eight years, with a reduction of $ 2 per lamp per annum for the unexpired two years and the remaining eight years, but added about twenty-five lamps to be furnished. It must also be noted that, before making the former contract, the one with the "Vicksburg Electric Company," the municipal board did advertise for competitive bidding, but this was the only instance of such action for street lighting in the whole history of the city. The following are the provisions of the charter, in any way pertinent, as it appears in the laws of 1884, page 422, et seq.:

"SECTION 25. Be it further enacted, That the board of mayor and aldermen shall not make any contract involving an expenditure of corporation funds, relating to work on public streets, or the erection, extension or repair of public buildings, where the cost of the proposed work shall exceed $ 500, or for materials to be furnished exceeding $ 200 in value, except in the following manner' Upon the direction of the board the mayor shall advertise for sealed proposals to do the contemplated work, for ten days, in a newspaper published in the city. At the first meeting of the board, after such publication, the mayor shall open and lay before the board all proposals received by hills, and the board shall accept the lowest and best bid, or they may reject all bids made, and direct publication to be made for other proposals. No proposal shall be considered unless accompanied by the names of the surety or sureties proposed to be given by the bidder upon his bond for the faithful execution of the contract, if awarded to him; and in all cases of contracts under this provision, bond and security in a sum sufficient to indemnify the city, shall be required of the contractor." . . . .

"SEC. 28. Be it further enacted, That the following additional powers may be exercised by the board of mayor and aldermen, by ordinances and resolutions adopted at any regular or special meeting." . . . .

"ART. 27. To provide for the health, peace, security, good government, convenience and general welfare of the inhabitants of the city."

Next we find an amendment of the charter in the laws of 1886, pages 694-5, which adds article 99 to the twenty-eighth section of the charter. This added article is in these words:

"ART. 99. To provide for the lighting of said city by electric lights or other methods."

So, condensed for easy examination, the charter reads: "The mayor and aldermen of the city of Vicksburg shall be capable of contracting, but shall not contract in a matter relating to work on the public streets or the erection, extension or repair of public buildings, where the cost of the work exceeds $ 500, or materials for it exceed $ 200, except upon sealed proposals after advertisement made, the lowest and best bids to be taken, with the right to reject all and readvertise; and the right to contract to bind the city is vested in the board, and the following additional powers may be exercised by the board at any regular or special meeting, viz.:

"1. To provide for the general welfare of the inhabitants.

"2. To provide for the lighting of said city by electric light or other methods."

From the context we are forced to conclude that (1) electric lighting was not regarded as "relating to work on the public streets or erection, extension or repair of public buildings;" and, (2) that the board might, at any "regular or special meeting," pass ordinances or resolutions for the general welfare and for electric lighting without first...