Price v. City of Fargo

Beuce, J. (after stating the facts as above). It is well established that, in the absence of charter or-statutory requirement, municipal contracts need not he let under competitive bidding. In such cases the corporate authorities are only required to act in good faith and to the best interests of the municipality. McQuillin, Mun. Corp. § 1186, p. 2634; Elliott v. Minneapolis, 59 Minn. 111, 60 N. W. 1081; Middle Valley Trap Rock & Min. Co. v. Morris County, 70 N. J. L. 625, 57 Atl. 258, affirmed in 71 N. 7. L. 333, 60 Atl. 358; Yarnold v. Lawrence, 15 Kan. 126; Augusta v. McKibben, 22 Ky. L. Rep. 1224, 60 S. W. 291; Dillingham v. Spartanburg, 75 S. C. 549, 8 L.R.A.(N.S.) 412, 117 Am. St. Rep. 917, 56 S. E. 381, 9 Ann. Cas. 829; State, Schefbauer, Prosecutor, v. Kearney Twp. 57 N. J. L. 588, 31 Atl. 454; Fitzgerald v. Walker, 55 Ark. 148, 17 S. W. 702. In the case at bar — 456 — there is no proof or serious allegation of any fraud or lack of good faith on the part of the municipal authorities. The proof, too, is conclusive that the filtration plant in question is a matter of great public utility, and one which is seriously and urgently needed. Where bids are requested, but there is no law requiring competitive bidding, nor that the contract shall be let to the'lowest bidder, such contract need not be let to the lowest bidder, and where it is awarded to a higher bidder, a taxpayer cannot have the contract set aside where there is no proof of’ fraud. McQuillin, Mun. Corp. ¶ 1228, p. 2691; Reihl v. San Jose, 101 Cal. 442, 35 Pac. 1013. The all-important question for discussion, then, is whether article 18 of chapter 62 of the Laws of 1905 (art. 18, chapter 30, of the Political Code of 1905), has any application whatever to municipal improvements of the nature of that under consideration; that is to-say, of municipal improvements which are of general use and utility, and which are maintained for the general purposes of government, ox* of preserving and protecting the public health and safety, which are not of any particular benefit to any particular property or any particular persons, as distinguished from the public as a whole, and which therefore can and should be paid for out of the public revenues and the public taxes levied upon the people as a whole, and not merely out of the funds which may be derived from assessments based upon special benefits conferred. We think it is quite clear that the provisions of the article in question have no such application. The title of the act. is “An. Act for the Organization and Government of Cities, and to-Provide for the Limitation of Actions to Vacate Special Assessments' heretofore Made.” It re-enacts, it is true, the general provisions of the-prior statute which relate to the general powers of cities, but it is quite clear that its main and special purpose is to provide for a more complete and comprehensive scheme in regard to what are generally known as- special or local improvements, the expenses of which are met by special assessments upon the property benefited. In addition to the-general powers, which are usually given to cities and in regard to which the act, in the main, merely re-enacts the provisions of chapter 28 of the Code of 1899, the power is given to make many other improvements, by means of what are commonly termed special assessments. That is to say, to construct pavements, sewers, sidewalks, and other improvements — 457 — which, though in a measure of public value, are also of a special value to the owners of the adjacent property, and in such case to provide for the payment of the expenses of such by levying an assessment upon the persons benefited thereby. The act nowhere makes any provision for the erection and construction of filtration plants and other similar buildings by special assessments. It does, it is true, provide in § 163 of article 18 for the payment of one fifth of the cost “of any work here-inbefore provided for other than sidewalks and opening=~and widening-of streets by general taxation of all taxable property in said city.” Such clause, however, clearly relates to the improvements mentioned in article 18, in which § 163 is contained, namely, sewers, paving, and water mains; for not merely is this to us made clear by the context,, but there is nowhere in the act any provision for the erection or construction of general pumping stations, jails, courthouses, or filtration, plants, and which, as we have before said, are general, and not special,, in the benefits which they eonfei’, by special assessments or by any other means than by general taxation. It is to be noticed, indeed, that §■ 149 contained in art. 18, which article by the terms of its title, relates to sewers, paving, and water mains alone, and which, with article 17, are the only articles which relate to special assessments and to what may be termed local improvements, expressly provides that “each contract so entered into shall state the time on or before which such work must be completed, and must state from what fund the amount to be paid thereon by the city is to be paid, and that the consideration of such contract is payable only in warrants drawn on such fund, and that such city assumes and incurs no general liability under such contract.” Such provision and such article must clearly and solely relate to what are generally known as local or special improvements. For nowhere else is there any limitation on a city from contracting generally for its buildings and improvements, and assuming a general liability therefor, provided that the indebtedness therein created is within its constitutional debt limit, and, in case bonds are issued, a proper sinking fund and tax levy is provided for. We are clearly, therefore, of the opinion that § 142 of article 18, and which provides as a prerequisite to the construction or the letting of a contract, that the city engineer shall file plans and specifications for such construction work, together with details of the work to be done, and an estimate of its. — 458 — probable cost, relates merely to the “construction or operation of sewers, to the opening, widening, and extending, paving, repaving, macadamizing, or curbing of any street, avenue, lane, highway, or other public grounds within the city limits, or to extending, relaying, and replacing any water mains, as such are the only improvements specified in the paragraph,” or, as a matter of fact, in the article itself. The same, we believe, is also true of §§ 145, 146, 147, 148, and 149, which relate to the advertising for bids, the nature of the bids themselves, the bonds required to be given, and the contracts to be made thereunder. We are, !n fact, led to the irresistible conclusion that art. 18 of chapter 62 of the Laws of 1905 relates merely, as it expressly states in its subtitle, to sewers, paving, and water mains, or, at any rate, to those improvements which are generally made and can be made by means of special assessments. Another persuasive reason for holding that the provisions of article 18 of chapter 62 of the Laws of 1905, and the provisions for competitive bidding therein contained, relate merely to contracts for sewers, paving, and water mains, that is to say, to the local improvements provided for and treated of in such article, is to be found in the fact that the legislature of 1907 amended by paragraph 7 of chapter 46 of the Laws of 1907, § 148 of such article, that is to say, § 2783 of the Laws of 1905, in various particulars, and in such amendment used the word “article,” and not “act.” “The city council,” the amended section reads, “shall have the right to reject any and all bids for work to be done under this article,” etc. This is contemporaneous constniction of the highest order and of the highest significance. The purpose of the amendment was to provide that if the first bid was rejected the contract should be let not to the lowest, but to the lowest responsible bidder, and no particular point seems to be made of the word “article.” It seems, however, to have been taken for granted that the word “act” in the original bill, that is to say, in § 148, art. 18, Laws of 1905, was used in the sense of article. If, indeed, such a construction is not given, and competitive bids are required in regard to all contracts let by the city, whether for paving, sewerage mains, or anything else, then it is only in the case of bids for paving, sewerage, and water mains, that is to say, the special improvements mentioned in article 18, Laws of 1905, that such bids may be rejected. In all other cases, if such — 459 — construction is adhered' to, tbe city would be bound absolutely to accept tbe first bids, provided they were tbe lowest, whether, in its mature deliberation and judgment, it thought it desirable or not so to do. This, in an age of growing invention and rapidly expanding scientific knowledge. In the case of a filtration plant where scientific knowledge and accuracy, and the correlation and co-ordination of scientific devices is especially necessary, such a situation is too dangerous for us to believe that it was ever intended. It is immaterial whether the legislature intended that the word “act” should be used in its strict and usual sense, or as a synonym for the word “article.” Even if we concede the strict and usual meaning, the intent of the legislature is just as clear. Where, indeed, in the whole of the act, is there to be found any idea, suggestion, or requirement that estimates of probable cost and competitive bids should be made or required in the case of buildings such as filtration plants ? And this even though we write the word “act” in big letters. The only sections which relate to bids or estimate of costs are § 132, which provides that “the city auditor shall, on or before the 15th day of March in each year, advertise in the official newspaper of the city twice, once in each week for two consecutive weeks, for bids for the construction of the various kinds of sidewalks in the city during the ensuing year, in accordance with the specifications of the ordinance provided for in § . . . [130 of this act], and such bid shall be received and opened, and, if accompanied by a check and bond as hereinafter provided, such contract shall be awarded to the lowest bidder, at the regular meeting of the city council in April, and contracts may be awarded to different bidders for the different kinds of sidewalks required.” This section certainly cannot be made to refer to anything but sidewalks. Section 142 provides: “When the city council shall deem it necessary to construct or alter any sewer, or to open, widen, extend, pave, repave, macadamize, or curb any street, alley, avenue, lane, highway, or other ‘public grounds within the city limits, or to extend, relay, or replace any water mains, the city council shall direct the city engineer, or in case the city has no competent city engineer, shall employ a competent engineer to prepare plans and specifications for such work, including the grading of the street if not already established, and all details of the work to be done, and make an estimate of its probable cost, which — 460 — plans, specifications, and estimates shall be approved by resolution of the city council, which approval shall be deemed to establish the grade-of the street as shown in such plans and specifications, if the grade of' the street has not previously been established by ordinance. In case-the improvement shall consist in paving or repaving any street, alley,, or public place, the city council may require such plans, specifications, and estimates to be made of such different kinds of pavement as they may deem advisable. Such plans, specifications, and estimates shall be the property of the city, and be filed in the office of the city auditor,, and remain on file in his office subject to the inspection of all persons.’’' Where is there in this section any reference to anything but sewers,. pavements, macadamizing, curbing or the extension and building and replacing of water mains? Section 143 provides: “After the plans,, specifications, and estimates mentioned in the preceding section shall have been filed in the office of the city auditor, and approved as provided in the preceding section, the city council shall by resolution declare such work or improvement (except the construction or alteration of sewers) necessary to be done according to such plans and specifications, as filed in the office of the city auditor; and in case of paving, such resolution shall designate the kind of pavement proposed to be constructed, and refer intelligently to the plans, specifications, and-estimates therefor; which resolution shall be published twice, once in each week for two consecutive weeks in the official newspaper of the city, and if a majority of the owners of property, liable to be specially assessed therefor, shall not, within thirty-five days after the first publication of such resolution, file with the city auditor a written protest against such improvement, then the city council shall have power to cause such improvement to be made according to such plans and specifications, and to contract therefor, and to levy and collect assessments as hereinafter provided, and all such work shall be let by contract to the lowest bidder therefor.” And § 145 provides (for § 144 merely provides for further proceedings in case of a protest, and is unimportant) that “the city council shall then ’cause proposals for said work to-be advertised for in the official paper of such city, twice, once in each week for two successive weeks, which advertisement shall specify the-work to be done, according to the plans and specifications therefor on file in the auditor’s office, and shall call for bids therefor upon a basis — 461 — of cash payment for said work, and state the time within which such bids will be received, and within which such work is to be completed. Bids for such work shall be forwarded to the city auditor of such city, securely sealed, so as to prevent their being opened without detection, and shall have indorsed upon the outside thereof a statement of what work such proposals are for. Such bids shall be opened by the city •council at the expiration of the time limited,” etc. Where is there, in these provisions, any reference to anything else except sewers, paving, macadamizing, and curbing ? Section 146 provides that “each bid for any work to be done under the provisions of this article shall be .accompanied by a certified .check, in case of sidewalks for the sum of $50, and in the case of other work for the sum of $500.” This provision cannot possibly be applicable. The amount is absurdly inade■quate. In the case at bar a check for $6,000 was deposited. The same is true of § 147, which requires that “each bid for any such work shall also be accompanied by a bond running to the city,” etc. The only other provision is § 149, which provides that “all contracts entered into for any work provided for in this article shall be •entered into in the name of the city, and shall be executed on the part of the city, by the mayor thereof, and countersigned by the auditor, with the corporate seal of the city affixed, and when signed by the contractor shall be filed in the office of the city auditor. Such contract shall require the work to be done thereunder to be done pursuant to the plans and specifications therefor on file in the office of the city auditor. . Each contract so entered into shall state the time on or before which such work must be completed, and must state from'what fund the amount to be paid thereon by the city is to be paid, and that the consideration of such contract is payable only in warrants drawn ■on such fund, and that such city assumes and incurs no general liability under such contract.” This provision was clearly not intended to apply to contracts of the nature before its. Nowhere in the act is there, any provision for paying for such buildings by means of a special assessment. Nowhere is there any provision for any fund, and nowhere is there any provision that in such cases the city cannot be held to assume and incur any general liability. The section in question, indeed, must relate solely to improvements which are to be paid for by means of special assessments. This is made clear by § 151, which follows. — 462 — and which provides, among other things, that “all special assessments levied under the provisions of this act shall constitute a fund for the payment of the cost of the improvement ” etc. Article 18, Laws of 1899, which was repealed by the present act and for which the present act was practically substituted, itself contained no provision to the effect that waterworks should be built by any system of competitive bidding. It is true it provided (§ 2312) for a special assessment of adjacent property in certain instances, but even then there was no provision for such competitive contracts. The present act repeals § 2312, and there seems to be no provision for even the payment of a portion of such waterworks by special assessment. What the present act really accomplishes is to group and make uniform the special assessment systems in regard to sewers, paving, and water mains, and bids and contracts in relation thereto, all of which, in chapter 28, Laws of 1899, were treated of in separate and distinct articles, and had their own peculiar provisions. There appears, indeed, never to have been any time when filtration plants and works of such nature were required to be built by contracts let by a system of competitive bidding, and, as we have before said, even under the old statutes, when a portion thereof seems to have been permitted to be paid for by special assessments, there seem to have been no mandatory previsions for the letting of the contracts on such basis, competitive bidding being-only required in cases of sewerage and paving. (See chapter 28, Laws of 1899.) We realize fully that it has generally been the policy of this state to require that all public contracts shall be let by competition. We realize that competition is generally required in the case of townships (§ 307), in the case of counties (§ 2421), in the case of school districts (§ 909), and even by chapter 62 itself, in ¶ 73, § 47, in the case of “paper, printing, stationery, blanks, fuel, and all supplies needed for the use of the city.” These special enumerations, however, which do not include buildings of the class or nature under consideration, are under the familiar rule of “expressio unius est exclusio alterv-us,” argue against, rather than for, the requirement in this particular case. We may be personally of the belief that to require such bids generally, and in the case of all municipal contracts, would be sound public policy. This personal opinion of ours, however, even though honestly en — 463 — tertained, does not justify us in judicially legislating and in requiring what the legislature has not required. This should be especially so in the case at bar, where such a judicial requirement would perhaps result in depriving a city of 15,000 inhabitants of a much-needed filtration plant, in endangering the public health, and in subjecting public officials who are responsible for the contract and against whom no charge of fraud or dishonesty has been made or imputed, to a possible action for damages. ' This is a court of equity, and not a legislative body. If the statute needs amendment, it is for the legislature, and not for us, to provide the remedy. This view of the case makes it unnecessary to consider the other propositions advanced, which are all dependent upon it. The judgment of the District Court is affirmed.