Ertle v. Leary

The Court. The demurrer of defendants to the complaint in this action having been overruled, they declined to answer, and plaintiff obtained judgment enjoining defendants—who are the county of Placer, the persons composing the board of supervisors of said county, and D. M. Leary, and J. H. Van Dorn—from proceeding under a certain contract of date November 28, 1894, whereby said Van Dorn undertook to construct parts of a new jail for the use of the county; the judgment also declared the contract to be void. Leary, it seems, represented Van Dorn in the negotiation and execution of the contract; he and his said principal appeal, and contend that the complaint stated no cause of action. It is to be gathered from that pleading that, about February 21, 1894, the board of supervisors adopted plans and specifications for the erection of a county courthouse and jail, which jail was to contain cells in number and dimension as there designated, and, in accordance therewith, the first story of the courthouse, and the outer walls of the jail, were duly constructed by contract with one McCann. In August following, the board advertised for bids for the construction of twelve jail cells and required bidders to furnish complete specifications; six bids were received, each upon plans and specifications submitted by the bidder, and not upon any previously adopted by the board. The bid presented by Leary, with accompanying plans and specifications, was accepted by unanimous vote of the supervisors, and a contract founded thereon was made with Van Dorn, by which the latter agreed to construct and deliver to the county “the jail of the size and dimensions set forth in the plans, specifications, and detail drawings adopted by said board,” and made part of the contract, and the county agreed to pay him therefor the sum of ten thou [240] sand seven hundred and fifty dollars; the work contracted for included steel cells, with floors, doors, prisoners’ corridors, locking devices and certain plumbing. If said work is done the moneys of Placer county will be paid therefor, the cost of the county government will be increased, and the property of plaintiff, a resident taxpayer of the county, will, he says, be unjustly taxed. Boards of supervisors in their respective counties have jurisdiction and power to cause to be erected and furnished, by contract let to the lowest responsible bidder, a courthouse, jail, and other public buildings; “provided, that none of the aforesaid buildings shall be erected or constructed until the plans and specifications shall have been made therefor and adopted by the board.” (County Government Act of 1893, sec. 25, subd. 9.) The jail in this case is a new edifice, and we agree with plaintiff that-the cells are an integral part of the same—not “furniture ” merely, as said by appellants; in the contract the structures to be completed and delivered by Van Dorn are themselves called “the jail”; and they probably are the most essential part of the prison. They are, therefore, within the statute prohibiting the board from causing the same to be constructed until plans, etc., have been made and adopted. But the power given by the act to build the jail carries with it as an incident the right to determine the plan and mode, restricted only by such limitations as some statute imposes. (1 Dillon on Municipal Corporations, sec. 140; Peterson v. Mayor etc. of New York, 17 N. Y. 449.) The provision of the statute above quoted requires that plans and specifications shall be adopted before the building is erected or constructed. Giving to this provision a' literal construction would cause it to mean merely that the board should not construct a building until it had determined the mode and plan in which it should he constructed; but the requirement that, before its construction, the board shall first adopt certain plans and specifications, taken in connection with the provision [241] i mmediately following in the same section that, “All such buildings must be erected by contract let to the lowest responsible bidder, after notice by publication in a newspaper of general circulation, published in such county, for at least sixty days,” shows that the legislature has clearly restricted the board from entering into a contract for the construction of a building, until after an opportunity has been given to bidders to bid for its construction, according to plans and specifications which the board may have adopted, at least sixty days before awarding the contract. In the present case it appears from the complaint that, in its invitation for bids, the board authorized bidders to furnish the specifications in accordance with which they would construct the jail; and that they were not required to bid for its construction according to the plans and specifications that had been adopted by the board in the previous February. Under this call six bids were received by the board, and, in the language of the complaint, “Each of said bids was and were upon plans and specifications drafted and submitted by each individual bidder, and none of said bids were made under or according to the plans and specifications theretofore adopted by said board of supervisors for the construction of said jail, cells, or interior part of said jail.” One of these bids was by Van Dorn, and the contract was awarded to him. Thereafter certain changes were made in the plans presented by him, increasing the contract price, and the contract was entered into with him for the construction of the jail. It is only necessary to compare this transaction with the requirements of the statute to perceive the invalidity of the contract. To permit each bidder to propose the plans and specifications according to which he will construct the building, not only prevents competition in bidding for the work, but gives to the board an opportunity for the exercise of favoritism in awarding the contract, instead of being required to let it to the lowest responsible bidder; for, since neither of tjbe bidders can know of the plans and specifications under [242] which others are making their bids, there is no standard by which the board can determine which is the lowest bidder. Whether these plans and specifications increased the cost of the building above those previously adopted by the board, or not, is immaterial. There was no opportunity for competition in bidding to do the work according to the plans, and the board by its own act prevented itself from complying with the requirements of the statute, to let the contract to the lowest responsible bidder. The judgment is affirmed.