May ex rel. Fisher v. City of Detroit

By the Court,

This is a motion to dissolve a temporary injunction granted *236upon a bill in chancery filed dor the purpose of obtaining a permanent injunction against the city of Detroit, restraining them Irom paying for certain paving upon Woodward avenue, in said city, that had already been contracted for with the defendants, Walton & Co., for the reason that the contract- was illegal and void, not having been made in accordance with the provisions of the .charter.

It is provided in the charter that all work of this kind shall be let to the lowest responsible bidder, with sureties, and that proposals for the same shall be advertised. The lorm of the advertisement, as well as the details of letting to the lowest responsible bidder, seemB to have beén left somewhat to the discretion of the parties who are required by the charter to perform that duty.' The time, place and manner of presenting the proposals must be thus determined.

In the advertisement for proposals in the -case at bar is the following provision : “ Builders are required to file á satisfactory bond with the Controller before the proposals are opened, conditioned that should they be found to be the lowest bidders they will enter into a contract, with good and sufficient sureties to perform the work.”

The Detroit Ironizing and Paving Company filed with the Controller sealed proposals, .which are conceded to be the next lower proposals to those of Walton & Co., to whom the contract was let, but without complying with the above provisions by what is termed a bidder’s bond, claiming that the Controller had no right to .require them to do so. It is claimed on the part of the defendants that they neglected to thus comply with the conditions of the advertisement because the particular -kind of pavement for which the b;d was put in was secured by letters patent to other parties than them • selves, to wit, the defendants, Waitón & Co. It was conceded that in’ other cases, when the said Detroit Ironizing and Paving Com pany were the owners of the patent, they filed the necessary bidders’ bond, and when the lowest bidders they'were awarded the Con' tract by the Common-Council.

It therefore resolves itself, into a question of right on the part of the Controller to require the bonds. It is conceded that up to 1809 these bidding'bonds had not been required. In the .proceed*237inga of the Common Council of January 8th, 18G9, will bo found the following:

“ To the Honorable the Common Council:

Gentlemen — Mr. James French, who is the lowest bidder for paving, etc., of Farmer and Bates streets, declines to enter into a contract and perform the work. Messrs. Batchelder & Cook, who are the next lowest bidders for-this paving, also»dccliue to .contract according to their proposals. Messrs. 11. B. Johnson & Co., who are the next bidders for the paving, etc., of the above named streets, have agreed to perform the work at their proposal.

(Signed) B. G. STIMSON, Controller.”

It will be seen from the above that instead of the lowest the highest bidder received the contraet. It is entirely clear that up to this time those having the matter in charge had not so executed this provision of the charter, in this regard, as to secure to the city the very object of the law, namely that the contracts should be let to the lowest bidder, and that something more was necessary in order to properly carry out the very wholesome provisions of the charter in this respect. The additional requirement was therefore.made a bidders’ bond should be filed.” “ The lowest responsible- bidder” is the expression in the charter, and the Controller cannot under it contract with any other.

I cannot believe it to be the duty of the Controller .to go out .upon the street and make'- inquiry as to the responsibility of the holders or trust to his own previously, acquired knowledge in regard to it. The charter does not provide the mode in which this information shall be obtained, and the Controller is therefore.left to' adopt such reasonable and proper regulations as will best1' carry out the' objects of the law and secure .the work done by the' loVest responsible bidder, as contemplated by the charter. - This, it ’ seems to mo, the Controller has most effectually done by requiring bidders bonds to be filed with the proposals, that he may in his own office (where it is presumed his duties are to. be performed) determine all the matters required of him by the l.aw. And the public. record thus made will for all time to come give notice to the world that no man’s bid was ever acted upon, much less accepted, which did nof' possess all the qualifications required by the law.