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City of Hartford v. King

May 9, 1952

CITY OF HARTFORD ET AL.
v.
KING ET AL.



Clay

CLAY, Commissioner. This suit was brought by property owners to enjoin the City of Hartford and a contractor from enforcing street assessment liens. The Chancellor granted the injunction.

In June of 1948 members of the city council discussed with the contractor the possibility of improving certain unpaved streets in the city. On July 1 the council held a regular meeting and passed an ordinance providing for street improvements, purportedly in accordance with the authority granted under KRS 94.580, 94.590 and 94.600. The following day, July 2, this ordinance was published in a local newspaper, along with a 'Notice to contractors,' asking for sealed bids to perform the work. This notice provided that no bids would be received after 10:00 a. m. the following day, July 3. A similar notice had been published on June 25, prior to the enactment of the ordinance.

On July 6, at what appears to have been an adjourned session of the regular July 1 meeting, the council accepted the oral bid of the contractor to perform this work. He undertook the job and completed it on or before August 5. On that date the council approved and accepted the work, and provided for the assessment of property owners to pay the cost thereof, fixed at $39,000.

Two major questions are involved: (1) whether or not the ordinances and the proceedings taken thereunder were invalid; and (2) if so, whether or not the property owners are estopped to assert such invalidity in this proceeding.

The above recited facts are not in dispute. In addition, it is admitted by appellants: (1) no sealed bid was submitted by the contractor; (2) there was no written contract for the work; and (3) no bond, as required by statute, was executed by the contractor.

Admittedly the method of procedure followed by the city council failed to comply strictly with several requirements of the principal statute involved. KRS 94.600 provides as follows:

'(1) Whenever the city legislative body in cities of the fifth and sixth classes shall determine upon the construction, reconstruction or laying of public ways, public places, sewers, water mains, and connections, at the expense of the abutting property owners, it shall cause the same to be done by ordinance, and by contract awarded to the lowest and best bidder after proper advertisement for bids. The city legislative body shall require the accepted bidder to execute a bond to the city with good and sufficient security, to be approved by the city legislative body, for the faithful performance of his contract.

'(2) In the erection, improvement and repair of all public buildings and works, in all street and sewer works, * * * when the work is done at the expense of the city and the expenditure required exceeds the sum of one hundred dollars, it shall be done by contract, and shall be let to the lowest responsible bidder, after due notice, under regulations prescribed by ordinance.' (Our italics.)

(1) It is appellants' contention that while there was a failure to comply with the strict requirements of the statute, there was substantial compliance, and after acceptance of the work by the city the proceedings may not be attacked in the absence of fraud or mistake. It is appellees' contention that the failure of the city council and the contractor to comply with this statute was such a flagrant disregard of its provisions that the entire proceedings were invalid and void.

We will first consider the question of advertising for bids. The statute uses the expressions 'proper advertisement' and 'due notice.' Clearly it contemplates that the request for bids shall be published at such time as will allow prospective bidders a reasonable time to examine the specifications, to estimate costs, and to present fair bids. Certainly the advertisement published on July 2 requiring bids to be submitted at 10:00 o'clock the following morning was neither due notice nor proper advertising.

Appellant contends, however, that the notice published on June 25 allowed sufficient time for bids to be received. This notice was ineffective, since no ordinance had been passed authorizing the work described therein. No businessman would think of submitting a bid on the basis of that notice in the absence of an ordinance. There could be no 'proper advertisement' prior to the enactment of some ordinance or resolution legally initiating the project. See City of Henderson v. Lambert, 14 Bush 24. Massey v. City of Bowling Green, 206 Ky. 692, 268 S.W. 348, cited by appellants, is not authority to the contrary.

These provisions of the statute with respect to notice and advertisement are mandatory, for the reason that the council is required to award the contract to the lowest and best bidder, and without a proper published request for bids there is no assurance that competition will play its part in keeping the cost as low as possible. Competitive bidding is a jurisdictional prerequisite to the authority of the city legislative body to charge property owners with the cost of improvements. City of Sebree v. Powell, 221 Ky. 478, 298 S.W. 1103.

Not only was there a lack of proper advertising, but the contract between the city and the contractor was not in writing. While the statute does not expressly provide for a written contract, most cogent reasons require the observance of such formality. It is well settled that a city must speak through its records, and there was no record commitment or authorization for anyone to bind the city by an oral contract. Oral agreements made by cities were condemned in Creekmore v. Central Construction Company, 157 Ky. 336, 163 S.W. 194; Fiscal Court of Breckenridge County v. Board of Trustees of Town of Hardinsburg, Ky., 118 S.W. 298.

A serious objection to such contracts is their lack of certainty. At no time could the members of the public or the property owners know what were the specific obligations of either the city or the contractor. The terms of the agreement would exist only in the minds of the council members and the contractor, and might well be subject to change from time to time upon mere whim or caprice. The evils were pointed out in Meacham Contracting Company v. City of Hopkinsville, 164 Ky. 703, 176 S.W. 187, wherein this Court refused to sanction the oral variation of a written contract by the mayor of a city. In Hydes & Goose v. Joyes, 4 Bush 464, the general council of the City of Louisville had by ordinance undertaken the grading and paving of sidewalks. It was provided that the work should be done under the supervision and control of the city engineer. The court held the ordinance invalid because it left the terms of the ...


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