Dalby v. City of Longmont

Mr. Justice Denison delivered the opinion of the court. [272] Dalby was defeated on trial to the court in a suit against the city for damage for breach of contract and brings error. The city council of defendant city passed the following resolution: “Moved, that Mr. Art Dalby be employed to superintend the finishing of the new reservoir, furnish his own machinery and tools, and that the work be carried on under the supervision of Mr. Bice, city engineer, Mr. Dalby and Mr. Shumaker, and Mr. Dalby be paid for his services and the use of his equipment the sum of $2500.” Within thirty days they rescinded this resolution. He had begun work but the city refused to pay him anything. The question before us is whether the council might rescind; i. e., whether the contract was valid. Several reasons are assigned why the contract is invalid, and, if any one is sound, the judgment was right. One is that by S. L- 1921, c. 236, “All work done by the city in the construction of works of public improvement of every kind shall be done by contract to the lowest responsible bidder on open bids after ample advertisement; Provided, that the city shall not be required to advertise for and receive bids for such technical, professional, or incidental assistance as it may deem wise to employ in guarding the interest of the city against the neglect of contractors in the performance of such work.” No bids were taken for Dalby’s contract. Finishing is part of construction. By its title this act applies to both first and second class cities. Dalby’s work was not, at least was not wholly, technical or professional because he was to employ and did employ his own machinery and tools and was to be and was supervised by city officials. It is a mistake to assert that the legislature may not thus regulate the action of the city with reference to its private property (if it is private). The power of all citizens to contract may be regulated; e. g., by the statute of frauds. [273] There is no escape from the conclusion that the contract was invalid for this reason; we think also for other reasons, but it is not necessary to discuss them. Judgment affirmed. Mr. Chief Justice Allen and Me. Justice Whitford concur.