Kundinger v. City of Saginaw

Grant, J. (after slating the facts). The necessity for the construction of a new bridge to replace the old one over the river at Genesee avenue had long been recognized, both by the city authorities and the traveling public. It had been the subject of discussion in the various proceedings of the council for about two years. Plans had been made and submitted to the Secretary of War, and had been rejected. Others were made. The matter was the subject of open discussion. The bridge was finally condemned as unfit for use by heavy teams and street cars. A plan was finally approved by the Secretary of War, and the common council proceeded in accordance with ’ the — 401 — authority of the special act, and proceedings were had which resulted in authorizing the contract to be made with the defendant the National Bridge Company. Fraud is charged in the bill. No claim of fraud or dishonesty on the part of the public officials is made in the briefs of counsel, nor was any made upon the oral argument. This charge, therefore, has failed, and the only questions before the court are questions of law, based upon the undisputed facts of the case. 1. The first question presented is, Does the special act confer independent authority upon the common council and the board of public works to construct the bridge, or is their power limited thereunder by the provisions of the charter ? The contention of complainant is that the act is supplementary to the charter, and that, while the act authorizes the construction of the bridge, all the proceedings preliminary to and authorizing a contract for its construction must be in accordance with the charter. The contention of the defendants is that the special act confers authority upon the common council and board of public works to construct the bridge without any reference to the charter provisions. The court below held with the complainant that the special act and the charter must be construed together, but found that the proceedings were regular under the charter provisions. We find it unnecessary to determine whether the special act alone should control, as we agree with the conclusion of the court below that the proceedings are in substantial compliance with the terms of the charter. Complainant insists that there-is a fatal defect, in that section 9 of title 12 of the charter was not complied with. Section 2 of the same title provides that “the board of public works shall, after the said public improvements have been first duly ordered by the common council, have supervision and charge of the construction * * * of bridges,” etc. Section 9 provides that, “whenever the common council of said city shall have decided upon the making of any such public improvement, it shall so — 402 — declare by resolution,” whereupon the board of public works is required to make an estimate of the materials, cost, expenses, etc. The objection is a technical one at best. We think the various resolutions and proceedings of the common council constitute a sufficient compliance with the charter provisions. The resolution of the common council on February 34, 1898, recited the intention and understanding that an act would be introduced in the legislature at the next session to authorize the issue of bonds to construct the bridge, and directed plans, specifications, and estimates to be made. Other similar resolutions were passed subsequently and acted upon. The legislature, by the special act, recognized the question of a bridge as settled. The decision and determination of the council could not be made to appear more clearly by a formal resolution. 2. The next contention of the complainant is that the method adopted by the council as a basis for bids is illegal. He contends, that the common council and the board of public works should have determined exactly upon the character of the bridge proposed to be built, and solicited bids only for one kind of a bridge. He claims that if the council desired the Scherzer Rolling Lift bridge, the draw of which was patented, it should have determined upon that, and solicited bids. Counsel cite, as supporting this proposition, Cass Farm Co. v. City of Detroit, 124 Mich. 438 (83 N. W. 108); Moreland v. Common Council of Detroit, 130 Mich. 343 (89 N. W. 935); McBrian v. City of Grand Rapids, 56 Mich. 95 (22 N. W. 306); and other cases. All of them are, however, cases, as we read them, wherein the charter involved required the contract to be let to the lowest bidder. In such cases the city authorities must determine the kind and character of the bridge, materials, etc. This rule, however, does not apply to cases where the charter does not require the contract to be let to the lowest bidder. Yarnold v. City of Lawrence, 15 Kan. 126. This is a well-reasoned case by Justice Brewer. — 403 — Section 5 of title 6 of the charter provides: “ Whenever any improvement is ordered in any street, except paving, repaving, planking, or macadamizing, the board of public works shall have authority to determine whether such improvement shall be done by the city under the direction and supervision of the board of public woTks, or whether bids shall be solicited and the improvement be let by contract.” Section 4 of the same title provides: “The common council shall have, the power to cause the common sewers, drains, vaults, arches, arid bridges, culverts, wells, pumps, and reservoirs to be bu'ilt in any part of said city, to cause the grading, raising, leveling, repairing, paving, repaving, repairing,'or covering with stone, brick, blocks, plank, or other material any street, avenue, lane, alley, highway, public ground, sidewalk, or crosswalk of said city, but all such improvements shall be done by the board of public works, as herein provided; but ho such public improvement shall be made by paving in any way except upon an affirmative vote of two-thirds of all the aldermen-elect, unless a majority of all the property owners having property fronting on the place to be so improved shall have petitioned the common council to make such improvement, in which case a majority vote of the council shall be sufficient to order the same.” Section 9 of title 12 provides: “The said board of public works shall (except in the case of the cleaning and deepening of ditches and gutters, and the repair of streets and sidewalks) advertise for proposals, except as herein otherwise provided, for the furnishing of material and for the performance of such work, and shall require all bidders to furnish security for the performance of proposals tendered to said board if the bid is accepted, and also security for any contract awarded; and all bids submitted to said board shall be publicly opened by it, and, as soon as may be thereafter, reported by the said board, together with its recommendation in respect thereto, to the common council, and no contract shall be let by the said board until it is duly authorized by the common council.” These are the strongest provisiohs of the charter in regard to letting contracts after advertising. Manifestly — 404 — they do not require that contracts must be let to the lowest bidder. It is discretionary with the board, and when it acts in good faith its action is final.- The method adopted by the defendants secured to the city competitive bids both upon plans and cost. See Attorney General v. City of Detroit, 26 Mich. 263. This view of the case is well stated by the chief engineer of the defendant bridge company, in describing the competition which the plans and specifications invited. He testified: “ The general specifications and Cooper’s specifications called for the plans referred to, — call for a definite result; that is, abutments of a certain kind, ornamented in a certain way, balustrades of a certain kind, hand railing of a certain kind, draw span of a certain width located at a certain point, the abutments to begin at a certain point and end at a certain point; the grade not to be higher than necessary, and, if possible, not higher than the old bridge; and the quality of all materials-was defined; and any bridge company in figuring upon that would want and naturally be anxious to get the most economical bridge that could he gotten, beauty and strength considered. Now, then, a great many different plans could be gotten, and they would all conform to those certain necessary qualifications; the roadway paving would be a certain kind, the walk and roadway he a certain width, capacity, etc., the roadway and sidewalks and street-car tracks just as called for, and in the location, and as to the height of the roadway, all those things would be the same, and in any case the city would get a thoroughly good bridge.” The complainant gave no testimony that the contract price was excessive. It was, in fact, 12,500 below that of the careful estimate of the city’s chief engineer. If the price was unreasonable, or if any tona fide offers were made to build the bridge for a considerably less sum, it was open to the complainant to give the proof thereof. Courts do not look with favor upon injunction bills to restrain or hinder the completion of public improvements, unless there is proof of fraud. Such fraud may perhaps be inferred where the price is exorbitant. — 405 — 3. It is urged that the specifications are not sufficiently definite. The charter, section 9, tit. 12, requires the board of public works to prepare, ‘ ‘ so far as necessary, plans and specifications for such work or improvement.” Its action in this matter is final when its members have exercised their best judgment, and have prepared plans and specifications which bidders can understand and act upon intelligently. The law does not give to courts the power to substitute their judgment for the honest judgment of the board. Only when such board has acted fraudulently, or, perhaps, has ignorantly prepared plans and specifications which are clearly insufficient to form a basis for intelligent and fair bidding, can courts interfere. 4. The authority granted by the board of supervisors, in 1891, to the city to construct a bridge, is sufficient to cover the construction of the present bridge. Where the board of supervisors has once granted such permission, and the bridge is completed in accordance therewith,— qucere, whether any further permission is required, either to repair the old bridge, or to erect a new one in its stead, so long as all the facilities for the use of the stream and the highway are retained to the public. Moreover, this is a question which does not concern the complainant. So long as the public authorities are content, it is no concern of his whether the supervisors have taken the proper action. The decree is affirmed, with costs. The other Justices concurred.