Windsor v. City of Des Moines

• Decision Date: 12 February 1897
• Citation: 70 N.W. 214,101 Iowa 343
• Parties: WINDSOR ET AL. v. CITY OF DES MOINES ET AL.
• Court: Iowa Supreme Court

101 Iowa 343

70 N.W. 214

WINDSOR ET AL.

v.CITY OF DES MOINES ET AL.

Supreme Court of Iowa.

Feb. 12, 1897.

Appeal from district court, Polk county; T. F. Stevenson, Judge.

Action to declare invalid a contract for certain paving in the city of Des Moines, and for an injunction to restrain the performance of the contract. Decree for plaintiffs, and the defendants appealed. Reversed.Guernsey & Baily and J. K. Macomber, for appellants.

Cummins, Hewitt & Wright, for appellees.

GRANGER, J.

The plaintiffs are 15 in number, and are abutting property owners on West Grand avenue, from Twenty-Eighth street to 400 feet west of Park lane, in the city of Des Moines. In September, 1893, the board of public works of Des Moines entered into a contract for the paving of said avenue between the points named, which contract the plaintiffs alleged to be invalid, for the reasons, among others, that the notice required by law was not given. It is alleged in the petition that afterwards the Des Moines Brick-Manufacturing Company, recognizing the invalidity of the contract, caused to be introduced into the general assembly of Iowa a bill entitled “A bill for an act to legalize the acts of the city council and board of public works of the city of Des Moines, in entering into certain contracts for paving, with the Des Moines Brick Manufacturing Company,” and it appears that such an act was passed by the Twenty-Fifth general assembly. It is averred that the act so passed did not cure the defects in said contract, and that it is still of no force. It is further averred that the defendant the Des Moines Brick-Manufacturing Company is about to proceed with the construction of the pavement, and a temporary injunction was asked and granted. On the trial the district court adjudged the contract void, and that the legalizing act, as to the contract in question, was of no effect, and permanently enjoined the defendants.

The first proposition argued is as to the sufficiency of the notice required in such cases. The complaint as to the notice is that it did not state as nearly as practicable the extent of the work, when it was to be done, or at what time the proposals were to be acted upon. The following is the provision of the law governing such a notice: “All such contracts shall be made by the council, or board of public works, when such board shall exist, in the name of the city, and shall be made with the lowest bidder or bidders, upon sealed proposals after public notice for not less than ten days, in at least two newspapers of said city, which notice shall state, as nearly as practicable, the extent of the work, the kind of materials to be furnished, when the work shall be done, and at what time the proposals shall be acted upon.” The notice published, so far as it is important, is as follows: “Proposals for Grading, Paving, and Sewerage. Sealed proposals will be received by the board of public works of the city of Des Moines, Iowa, at their offices in the city hall, until 10 o'clock a. m. Thursday, August 3, 1893, for the following described work, as per plans and specifications now on file in the office of the board of public works: Brick Paving. Two courses of brick, on sand foundation, with top filler, as described on pages 9 and 10 of specifications. First. West Grand avenue from Twenty-Eighth street to four hundred feet west of Park lane.” Besides the defective notice, it is contended in argument that the contract is invalid because not awarded to the lowest bidder, because no time is fixed for its beginning or the completion of the work, and because it includes an obligation on the part of the contractor to maintain the pavement in repair for an indefinite number of years.

That the notice was insufficient, there is no doubt. It fails to...