State ex rel. Dunn v. Barlow

• Decision Date: 31 March 1871
• Citation: 48 Mo. 17
• Parties: THE STATE OF MISSOURI ex rel. CHARLES E. DUNN, Relator, v. STEPHEN D. BARLOW, Respondent.
• Court: Missouri Supreme Court

48 Mo. 17

THE STATE OF MISSOURI ex rel. CHARLES E. DUNN, Relator,

v.STEPHEN D. BARLOW, Respondent.

Supreme Court of Missouri.

March Term, 1871.

Petition for Mandamus.

S. Reber, for respondent.

I. The ordinance establishing and regulating the engineer department, approved by the mayor August 5, 1864, fifth section, article I, ordained that all public works ordered by the city, unless otherwise directed, shall be let by the city engineer to the lowest and best bidder, and that notice of the letting out of such work should be publicly given. By section 1 of article VI of ordinance No. 5399, it is ordained that “the city engineer is hereby authorized and instructed to contract in the same manner as for other city work, for the cleaning, lighting and repairing of the public street lamps for the term of one year; and the said work shall be re-let annually thereafter, unless otherwise ordered by the committee on gasworks. The lighting, cleaning and repairing shall each be let separately, if it shall be the interest of the city to do so, and the price shall be for each item.”

II. The act, approved March 4, 1870, entitled “An act to revise the charter of the city of St. Louis and to extend the limits thereof,” provides that the city council shall have no power directly to contract for any public work or improvements, or repairs thereof, contemplated by this charter, nor to fix the price or rate therefor; but the city engineer shall in all cases, except in cases of necessary repairs, prepare and submit to the council plans, profiles and estimates of the cost of any proposed work; and, under the direction of ordinance, shall advertise for bids and let out said work, by contract, to the lowest and best bidder, subject to the approval of the council. The alleged agreement, entered into on the 3d of January, 1871, by F. Bischoff, city engineer, for the extension of said contract No. 1402 until the 1st day of March, 1872, was made without any authority either in the laws of the State or ordinances of the city of St. Louis, and without any lawful authority whatever, and the same is therefore null and void. The engineer had no authority to contract with said Dunn or any other person for lighting, cleaning and repairing the public street lamps in the city except by complying with the provisions of said fifth section of article I of said ordinance 5399, above recited, and by letting the said work to the lowest and best bidder, all which said engineer failed and omitted to do.

Glover & Shepley, and Donahue, for relator.

I. If the contract made with Mr. Dunn was valid, it was the duty of the comptroller to countersign it.

II. The contract made with Mr. Dunn was prepared by the city engineer in proper form, signed by Mr. Dunn and his sureties, submitted to the council for their approval, and approved by them; and the action of the city engineer in the premises was in conformity with instructions emanating from the committee on gasworks. These facts make the agreement with Mr. Dunn a valid contract under the city charter and ordinances. The meaning of section 17, article VIII, amended charter, approved March 4, 1870, is obvious: 1. The council shall not contract directly, but may contract indirectly, for work indicated in that section, after plans, profiles and estimates, advertisements and bids approved by the council. 2. But no work, improvement or repairs mentioned in that section is to be let out after advertisement and bids unless it be of nature to admit of plans, profiles and estimates of costs. That is perfectly clear. Section 18 enforces the same view wherein it says every ordinance requiring such work shall contain a specific appropriation from the proper revenue or fund, based on an estimate of cost, etc. Now, what is meant by such work? Evidently that of which profiles and plans may be made and submitted--that previously mentioned, streets, alleys, wharves, sewers, etc.

BLISS, Judge, delivered the opinion of the court.

The relator asks for a mandamus upon defendant as city comptroller of the city of St. Louis, commanding him to countersign a certain contract for lighting, cleaning and repairing the street lamps of the city, claimed to have been entered into between him and the city, and which the comptroller refuses to countersign although required to do so by law. Contrary to our usual requirement that such proceedings shall be commenced in the Circuit Court, we have allowed the original writ for the reason that a pressing public necessity requires an immediate decision as to who shall be employed and paid for this important public work, lest a double liability be incurred or the streets fail to be lighted.

The petition shows that in May, 1865, the city made a contract with one Henry as principal, for lighting, extinguishing, cleaning and repairing the public street lamps for one year from date; that by consent of the city council the contract was transferred to the relator Dunn; that it was renewed from year to year in favor of the relator, the...