Seysler v. Mowery

• Decision Date: 03 October 1916
• Citation: 160 P. 262,29 Idaho 412
• Parties: R. E. SEYSLER, OSCAR NORDQUIST and JULIUS BRASS, Appellants, v. CHAS. R. MOWERY, as Mayor of the City of Wallace, et al., Respondents
• Court: Idaho Supreme Court

160 P. 262

29 Idaho 412

R. E. SEYSLER, OSCAR NORDQUIST and JULIUS BRASS, Appellants, v. CHAS. R. MOWERY, as Mayor of the City of Wallace, et al., Respondents

Supreme Court of Idaho

October 3, 1916

CITIES AND VILLAGES-PUBLIC IMPROVEMENT-COMPETITIVE BIDS-SPECIFICATIONS.

1. It was the purpose of the legislature, in enacting subds. 15 and 16, sec. 2238f, Rev. Codes (Sess. Laws 1915, p. 231) relative to making contracts for certain improvements by cities and villages, to procure competitive bidding for such contracts and thereby to safeguard public funds and prevent favoritism, fraud and extravagance in their expenditure.

2. It was also the legislative intent that such a contract must not be let to any other than the lowest bidder, unless some fact or facts, exist by reason of which a bid, other than the lowest, has been made by one who is, even though higher in price, the best responsible bidder.

3. If such facts do exist they must be weighed and considered by the mayor and council or board of trustees, while in session and, if the contract is let to another than the lowest bidder, the ultimate facts upon which that action is based should be entered in the clerk's minutes.

4. The specifications for a public improvement such as is contemplated by subds. 15 and 16, sec. 2238f, supra, must be made sufficiently definite and certain that any bidder who secures the contract may be compelled to perform it in a way to produce the kind, character and grade of improvement desired and that liability upon his bond will result from his failure so to do.

[As to construction of "lowest responsible bidder" or similar phrase in statute providing for letting of municipal contracts, see note in Ann.Cas. 1913A, 500]

APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. William W. Woods, Judge.

Suit to enjoin the mayor and council of the city of Wallace from entering into a contract for the pavement of the streets and alleys of Local Improvement District No. 4 of that city. Order dissolving temporary restraining order. Reversed.

Reversed and remanded, with instructions. Costs awarded to appellants.

Miller & Gundlach and J. F. Ailshie, for Appellants.

A legislative body can only "do things" by appropriate action spread upon its minutes, and it cannot legally act by parol. (Miller v. Board of Auditors, 41 Mich. 4, 2 N.W. 180; Gorman v. County Commrs., 1 Idaho 553; Rankin v. Jauman, 4 Idaho 394, 400, 39 P. 1111; Castle v. Bannock County, 8 Idaho 133, 67 P. 35.)

The individual action of any number or all the members thereof cannot bind the corporation. (McCortle v. Bates, 29 Ohio St. 419, 23 Am. Rep. 758; Zottman v. San Francisco, 20 Cal. 96.)

The power of the city council to accept or reject bids and to award contracts is quasi-judicial in its character, and where arbitrarily exercised or the discretion is abused, the courts will vacate their action. This is particularly true where an injured taxpayer applies to the court of equity for relief from such abuse of discretion and arbitrary action. In the case at bar the discrepancy between the bids for the same kind of work is so great that the record itself raises the legal presumption of arbitrary action or favoritism or fraud. (3 McQuillin, Mun. Corp., sec. 1227; Inge v. Board of Public Works, 135 Ala. 187, 93 Am. St. 20, 33 So. 678; State v. Rickards, 50 Am. St. 490, note; In re Delaware & H. Canal Co., 8 N.Y.S. 352; Nelson v. City of New York, 131 N.Y. 4, 29 N.E. 814.)

Discretion must be exercised in a legal and judicial manner. ( Attorney General v. Detroit, 26 Mich. 262; Hannan v. Board of Education, 25 Okla. 372, 107 P. 646, 30 L. R. A., N. S., 214; People ex rel. Coughlin v. Gleason, 121 N.Y. 631, 25 N.E. 4; Fourmy v. Town of Franklin, 126 La. 151, 52 So. 249.)

Lawrence E. Worstell and James A. Wayne, for Respondents.

If the council had not only to determine which of the several bids was lowest in amount, but it had also the right to determine as between several bidders which was the most responsible, then it was clothed with a discretionary power, and its action in accepting the bid which it did accept in this case should not be disturbed, except where its action is shown to have been actuated by fraud or collusion. The proof of fraud sufficient to disturb the action of the city council should be clear and convincing and not rest entirely in allegations of a complaint, unsupported by an averment of specific acts, or by any proof of fraud. (Williams v. City of Topeka, 85 Kan. 857, Ann. Cas. 1913a, 497, 118 P. 864, 38 L. R. A., N. S. 672; Reed v. Rockcliff-Gibson Construction Co., 25 Okla. 633, 138 Am. St. 937, 107 P. 168; City of North Yakima v. Scudder, 41 Wash. 15, 82 P. 1022; State v. Mayor, 66 N.J.L. 533, 49 A. 587; Maryland Pav. Co. v. Mahool, Mayor, 110 Md. 397, 72 A. 834; United States Wood Preserving Co. v. Sundmaker, 186 F. 683, 110 C. C. A. 224; Louisville Steam Forge Co. v. Gast (Ky.), 115 S.W. 761; Trapp v. City of Newport, 115 Ky. 840, 74 S.W. 1109.)

Where the authority is conferred upon a public body to let a contract to the lowest and best bidder, a discretion is conferred upon such public body that cannot be interfered with or controlled by the courts through the issuance of a writ of mandate. (State v. Hermann, 63 Ohio St. 440, 59 N.E. 104; Eaves v. Rickards, 16 Mont. 145, 50 Am. St. 476, 40 P. 210, 28 L. R. A. 298; Brown v. City of Houston (Tex. Civ.), 48 S.W. 760; State ex rel. Union Fuel Co. v. City of Lincoln, 68 Neb. 597, 94 N.W. 720; Johnson v. Sanitary District of Chicago, 163 Ill. 285, 45 N.E. 214.)

MORGAN, J. Sullivan, C. J., and Budge, J., concur.

OPINION

MORGAN, J.

On June 1, 1916, respondents, as mayor and members of the city council of Wallace, having theretofore advertised for bids for paving the streets and alleys in Local Improvement District No. 4 of that city, met in special session for the purpose of considering such bids as had been submitted for making said improvement. For laying the kind of pavement respondents had agreed upon, being of asphaltic concrete with a four-inch base and a two-inch top, and for maintaining it for a period of five years, six bids were submitted, which had been tabulated by the city engineer for the convenience of the mayor and council, as follows:

Name.

Price.

Maintenance.

Oregon Eng. & Con. Co.

$ 72,347.70

$ 250.00

Clifton, Applegate & Toole

67,954.44

131.50

Independent Asphalt Pv. Co.

62,572.95

1,250.00

Spokane Bitu-Mass Pav. Co.

56,857.75

5.00

C. M. Payne

54,587.70

1,938.25

Washington Paving Co.

54,784.26

300.00

It further appears that, without assigning any reason for so doing, and over the protest and objection of citizens of the city and taxpayers of the local improvement district respondents rejected the bids of Clifton, Applegate & Toole, Independent Asphalt Paving Co., Spokane Bitu-Mass Paving Co., C. M. Payne and Washington Paving Co., and accepted that of Oregon Engineering & Construction Co.

Thereafter appellants, who are citizens of Wallace and who own property which is subject to taxation in and for the benefit of Local Improvement District No. 4, instituted a suit in the district court, one of the purposes of which was to procure an injunction restraining respondents from entering into a contract with the Oregon Engineering & Construction Company for making the proposed improvement.

Upon the filing of the complaint the district judge issued an order requiring respondents to appear and show cause, if any they had, why an injunction pendente lite should not issue, and commanding them to desist from taking any further action in the premises until the further order of the court.

The matter came on to be heard in the district court upon the amended complaint, the order to show cause and an answer filed by all the respondents except the mayor. There were submitted for the court's consideration a certified copy of the council proceedings had at the special session of June 1, 1916, and certain affidavits filed by the respective parties, all of which appear in the record in this court. After considering the showing so made the district judge, on June 24, 1916, made and entered an order vacating, setting aside and dissolving the order to show cause and the temporary injunction or restraining order.

This appeal is from the order dissolving the injunction. Pending the hearing upon appeal appellants made application for and were granted an order in the nature of an injunction pendente lite, and application was made by respondents to dissolve that order. However, by agreement of counsel and with the consent of this court, the case was heard upon the appeal and upon the record made in the district court.

In advertising for bids and in awarding the contract respondents were attempting to proceed pursuant to the provisions of subds. 15 and 16 of sec. 2238f, Rev. Codes of Idaho, (Sess. Laws 1915, p. 231), which are as follows:

"15. All contracts which are made by the city or village for any improvements authorized by this section or any subdivisions thereof, shall be made by the council in the name of the city or village upon such terms of payment as shall be fixed by the council, and shall be made with the lowest and best responsible bidder upon sealed proposals, after public notice of not less than three (3) weeks issue of the official weekly newspaper of said city or village, which notice shall contain a general description of the kind and amount of work to be done, the material to be furnished, as nearly accurate as practicable, and shall state that the plans and specifications for said improvement work are on file in the office of the city engineer or city clerk.

"16. Each contractor shall be required to give a good and...