Twiss v. City of Port Huron , 63 Mich. 528 ( 1886 )

Campbell, C. J.

Both of these cases are suits in equity to relieve the respective complainants from the burden of illegal assessments. The court below, which was the circuit court for the county of St. Clair, dismissed the bills, and complainants appealed.

The assessments are complained of on various grounds, ’some relating to the invalidity of the proceedings of the common council of Port Huron, and some to injurious irregularities.

The assessments were for grading and paving a long street in Port Huron, which was divided into two districts by the resolution, and there is some reason to think the division produced some effects that were material; but, as we think some more important questions will dispose of the controversy, we shall not advert further to this.

Hnder the charter of Port Huron, no street can be paved unless on a petition signed by the owners of a majority of the frontage by feet front. In 1882, upon what was claimed to have been such a petition, order was made, and a contract let to one John Hoffman, to pave a part of the street. These proceedings were abandoned as illegal, and became in law as if never taken.

In June, 1883, upon the fourth of that month, a petition was presented to the council, now claimed to have been signed by a sufficient number of land-owners. Two of these owners were induced to sign the petition, which they did not wish to sign, by pecuniary inducements, — one, by such inducements ■on the part of Hoffman, the contractor; and one, by a promise by an alderman to pay part of his assessments.

At the same meeting this petition was referred to the city -engineer, to report whether a majority of owners had signed the petition. He immediately filed a written report stating that they had. At once, and without further ceremony, it was referred to the superintendent of publie works to examine, and report estimates and specifications, with such recommendations as he should deem expedient, and he was authorized to call on the city engineer for such assistance or information as he deemed expedient. He, on the spot, filed a written report, that, pursuant to these instructions, he had examined the avenue, and regarded the grading, paving, and curbing as a necessary public improvement, and recommended immediate action, with a view to its completion during the season. In the same report he filed and adopted the engineer’s specifications for the work, which, instead of putting the whole street on the same footing, contained an estimate of one part at 24 feet wide, and one part at 35 feet wide, making the cost per foot front in one $1.21, and in the ether $1.70. With this was the engineer’s report, containing a long and full body of specifications.

Eesqlutions were at once passed, reciting the various references and reports, and ordering the work done, creating the 4wo assessment districts mentioned, directing advertisement for proposals, and directing the assessment payable in four installments.

These resolutions were not submitted to the mayor for his ■approval. The advertising was at once had, and the council met on June 11, 1883, just one week after the petition was presented and the resolutions passed.

At this meeting, on June 11, the superintendent of public works submitted three bids: One from T. S. Skinner, at 23 ■and 25 cents per cubic yard for excavating in the two several ■districts, and 75 and 78 cents a square yard for paving. P. W. Ashley bid at 18 and 22 cents per cubic yard excavation, and 73 cents a square yard for paving. John Hoffman bid at 2á cents a cubic yard for excavating, and 65 cents a square yard for paving. Charles Grieb had bid at 59$- cents a square yard for paving, and was unquestionably the lowest bidder; but at this meeting he told the council his man had made a mistake in putting 59$ for 69j, and asked leave to withdraw his bid. This was allowed, and the contract awarded to Hoffman, as the lowest bidder.

The testimony shows pretty plainly that Grieb and Hoffman were in collusion, and knew of each other’s bids, and were each other’s bondsmen, and were to work together in the matter, and that Hoffman was privy to the withdrawal of Grieb’s bid.

Whether the common council knew of this collusion we need not inquire. The .superintendent of public works, in whose hands all the bids were placed, and who know what securities were filed, and whose report should have been prepared before the meeting,' makes no reference in that report to Grieb’s bid at all. The charter expressly requires contracts to be let to the lowest bidder. Hoffman was not the lowest bidder. Assuming that Grieb could be lawfully relieved from his bid on such a showing as he made, ’unsupported by his own oath or that of his man, that would not change the fact that his bid was lower than Hoffman’s, or justify disregarding it without a new bidding. Hoffman’s testimony, however,, shows that G-rieb’s bid was not made by mistake, but was understood to have been made lower than Hoffman’s, so that, if Mr. Skinner bid between them, the job might be secured by it. Whether the council knew or did not know these facts is unimportant. They had no power to deprive the city, and the parties who would be assessed, of the benefit of a letting to the lowest bidder. It should have been advertised over again, and' the other bidders might have revised their bids.

These resolutions were also void for non-submission to the mayor. The charter (chap. 10, § 11) declares that every resolution, before taking effect, shall “be presented by the clerk to the mayor. If the mayor approve thereof, he shall thereon write his approval, with the date thereof, and sign the same; and thereupon such ordinance, resolution, or proceeding shall go into effect.” He is required to return hi» objections, if not signing, to the next regular meeting, when,, on reconsideration, it requires a vote by yeas and nays, of two-thirds of the members elect, to repass it.

The charter is express that the resolution must be submitted to the mayor, for approval or disapproval, in the same way,, substantially, that a statute must be to the governor. In the-present instance the resolution was at once acted on, without further ceremony, and the contract let on bids made before the next meeting.

It is impossible to hold such provisions non-essential. This, whole subject was revised in 1879. Local Acts 1879, No. 408. By the charter the mayor presides, if present, but his absence in no way prevents the transaction of business. He has no vote except in case of a tie, and has no voice in the business except as chairman. The provisions for his separate approval are all contained in this revising statute, and these very sections were revised. Local Acts 1879, p. 278.

The resolutions under which the business was done were therefore invalid.

We are not concerned on this hearing with the equities of any but the complainants, and we need not in their case consider any of the minor questions, when the jurisdictional requisites, as well as a lawful letting to the lowest bidder, are .absent.

The proceedings, as to the complainants, must be held void, and the decrees below reversed, with costs of both ■courts, and the defendants be perpetually enjoined, as prayed.

Champlin and Morse, JJ., concurred.