higher than the McGovern Company, made | rations in making connections with water a protest against the acceptance of the bid mains and gas pipes. In such cases those of the latter company but it was not heeded. who made these cuts paid the city, and the The superintendent of streets recommended city paid McGovern, for restoring the pavethat the bid of the McGovern Company be ments. When repair work was completed accepted, and after a conference with the and approved by the inspector it was meascommissioner of public works and the mayor ured by the inspector, assisted by an employé and a consideration of the bids by those of the McGovern Company; the inspector in officials, its bid was accepted, and a contract each instance holding the reading end of the entered into which provided, among other tape. The inspector entered the area of the things, that the McGovern Company was to repair work in what was known as a "field furnish all labor, materials, tools, and ap book." The field books used by the inspectors pliances and do all work and labor necessary were afterwards turned in to the bureau of for the repair of asphalt pavements in the streets. On the trial of the case the decity of Chicago, said work to be commenced fendant produced these field books at the reon or before the 2d day of June, 1908, to quest of the plaintiff, and 31 of them used progress regularly and uninterruptedly after in 1908, marked from "S-1" to "S-31," incluit shall have been begun, excepting as other- sive, were offered in evidence, as were also wise ordered by the commissioner of public 14 field books showing work done in 1909. works, and finished and fully completed on Each inspector who marked out the work to or before the 1st day of July, 1909; the be done and afterwards checked it up testified whole of the work to be commenced and on behalf of the plaintiff to the entries in the carried on when and where the commissioner field books made by him, and that they were of public works shall direct. It was further correctly made, and that such work was done agreed that all of said work was to be per- on the public streets or alleys of the city of formed under the immediate direction and Chicago at places where repairs were necsupervision of the commissioner of public essary. During the progress of the work the works. The city of Chicago agreed, when the McGovern Company from time to time precontract should be fully carried out and com- sented bills to the city, and these bills were pleted and the work accepted by the commis- checked up with the record of the work as sioner of public works, to pay the amounts preserved in the field books, and if found to which the McGovern Company had bid for correspond, an estimate was computed showthe different classes of work, and that, if the ing the amount of work and quantity of marate of progress were satisfactory to the com- terial and the amount of money due accordmissioner of public works, estimates would be ing to the contract price, and a warrant issued to the contractor during the making would be drawn for 85 per cent. of such estiof said improvements for 85 per cent. of the mate; the balance of 15 per cent. being revalue of the work done and in place at the tained by the city in accordance with the time of issuing such estimate; the remaining terms of the contract. These bills and esti15 per cent. being reserved until the final mates were also offered in evidence. It completion and acceptance of said work. At- was admitted that the warrants received by tached to the contract were the specifications, the McGovern Company in accordance with the material parts of which have been above these estimates were all the payments made set out. for work done under this contract, and it affirmatively appears from the evidence of the city officials that the work done was all good work, and was inspected and accepted as such. Work was continued under the contract by direction of the city officers of the street department until the latter part of June, 1909, and bills were presented from time to time, and some of them were paid and some of them were not paid. work was finally stopped, 229,891.27 yards of class A work and 12,064.03 yards of class B work had been paid for, amounting to $413,248.03. On August 4, 1909, the McGovern Company wrote a letter to the commissioner of public works stating that the contract had expired on June 30th, and that there was a large sum due the company for unpaid bills, and requesting payment of all moneys due before August 7th. Thereupon a final estimate was made and a warrant drawn for $61,987.21, being the 15 per cent. reserve withheld on previous estimates. After re When The McGovern Company immediately went to work repairing the streets under the direction of the commissioner of public works and under the immediate supervision of M. J. Doherty, the superintendent of streets, and Paul Redieske, the assistant superintendent. In the employ of the city in the bureau of streets were a number of inspectors. The manner in which the work was done was as follows: The superintendent of streets would advise the McGovern Company what streets were to be repaired, and one of the street inspectors would go to the place where repairs were to be made and mark the area of the defective pavement with chalk. The surface of the pavement would then be removed, if necessary, sometimes by heating and sometimes by cutting, and the repairs made in class A or class B, whichever was deemed necessary and ordered by the officers of the city. In addition to this work a great many repairs were made of cuts in the pavement caused by plumbers and public service corpo-|ceiving this, the McGovern Company made a demand for the further sum of $117,394.22, | cubic yard. The bid of the Barber Asphalt and finally brought this suit to recover. Total amount due and unpaid $114,714.79 This was the amount of the verdict and judgment. The issues of fact raised by the pleadings and assignments of error must be considered as settled by the verdict of the jury and the judgments of the superior and Appellate Courts. [2] Taking up the questions of law involved, it is true that section 50 of article 9 of the Cities and Villages Act (Hurd's Stat. 1916, p. 320) provides that any work of any public improvement, except such as is to be paid for in whole or in part by a special assessment, shall, when the expense thereof exceeds $500, be constructed by contract let to the lowest responsible bidder in a manner prescribed by ordinance, with certain stated exceptions, none of which exceptions apply to the contract under consideration. If the bid of the McGovern Company for class B work was intended to cover all the work and material required in making class B repairs, it was not in accordance with the specifications, which provided that: "No bid will be accepted which does not contain an adequate or reasonable price for each and every item named in the schedule of quan tities." Paving Company was the highest bid on all items, and in the aggregate was $5.88 per cubic yard for cement concrete, $2.02 for class A work, and $3 for class B work. A sixth of a cubic yard, according to the foregoing figures, would cost, at the same rate, 98 cents, which would be exactly the difference between the bids for class A work and class B work. The other bids ran from 31 cents to 60 cents more for class B work than for class A work, and were not at all in proportion to the bids for cement concrete per cubic yard as made by the respective bidders. It is claimed by counsel for defendant in error that under a reasonable interpretation of the advertisement for bids the bidder would be entitled to charge by the cubic yard and ton for the concrete binder and asphalt mixture put into class B work furnished in quantities, and it has not been pointed out where concrete and the other articles which were to be furnished in lots could be used except in class B repairs. But, however this may be, the specifications also provided that bidders should satisfy themselves, by a personal inspection, of the work to be done. The amount of either class A or class B work was uncertain, and for that matter the work which would be done under any contract which could be made was of such a nature that the quantity and kind of the different materials to be used were uncertain as well as in many other particulars. The pavements to be repaired, as appears from the evidence, were in bad condition, being exposed to constant wear and constantly disintegrating. It was contemplated, and subsequently embraced in the contract, that the contractor should go wherever he was ordered by the superintendent of streets and do whatever work there was to be done at such places as he considered necessary. It appears from the evidence that the McGovern Company had worked for the city before on a large The language of the part of the specifi- similar contracts, and had had cations above quoted giving information to amount of experience in such matters, and bidders is somewhat indefinite, as it may it would be unreasonable to suppose that it have been construed to apply only to ma- did not make use of its knowledge of the terial which was to be delivered in quanti- pavements based on an inspection of the ties. Conceding, however, that it applied to same, as provided in the specifications, and class B work, an analysis of the different also on its previous knowledge and experibids submitted shows that only one of these ence in such matters. The difference between bids, that of the Barber Asphalt Paving Com-class B repairs and class A repairs, as it pany, was a strictly balanced bid, as we understand that term as used in the argument of counsel. Class A work apparently included the removal of portions of the surface and resurfacing. Class B work apparently included the resurfacing required in class A work, and also a six-inch concrete base, if such base was included in class B work. There were also bids submitted for Portland cement concrete in place by the cubic yard and binder and asphalt mixture by the ton. A square yard of concrete six actually turned out, was very small. Fur- sidewalk repairs" (then follows a specific sum for each ward, the sums thus appropriated totaling $2,107,549). ated "provided a permanent revenue of from $500,000 to $600,000 for street repair purpos es." bills rendered by the McGovern Company all class B repairs were charged for at the price bid (one cent a square yard), and those that were paid by the city were paid on that basis. The commissioner of public works of the In Johnson v. Sanitary District, 163 Ill. city of Chicago in a report to the mayor es285, 45 N. E. 213, the statute involved re-timated that the vehicle tax above appropriquired that contracts which exceeded $500 should be let to the lowest responsible bidder. The lowest bid was $145,112 lower than the second bid. The Sanitary District trustees rejected the lowest bid, and awarded the contract to the next highest bidder, whereupon the lowest bidder instituted proceedings to compel the Sanitary District to accept his bid. This court said on page 287 of 163 Ill., on page 214 of 45 N. E., in the opinion: In this connection it was shown that, pursuant to an amendment to the Cities and Villages Act approved December 31, 1907, and in force on the same date, the city was empowered to license all wagons and other vehicles conveying loads within the city, the license fee, when collected, to be kept as a separate fund and used only for paying the costs and expenses of street and alley improvements or repairs. Thereafter, on February 2, 1908, the city council passed a vehicle license ordinance fixing the license fees on vehicles in the city of Chicago, and provided, among other things, that all revenues derived from such license fees shall be kept "The mandatory injunction applied for to compel the letting of the contract to appellants is in the nature of a mandamus, and is an attempt to control a discretion that is judicial in its nature. The duty of examining the proposals, determining the responsibility, and awarding the contract is judicial in its nature and character, and the awarding the contract is a judicial act, which is not within the province as a separate fund and used for paying of the courts to control by mandamus or man- the costs and expenses of street and aldatory injunction [citing numerous authorities]. ley improvements or repairs, 15 per cent. Nor can the courts, in the absence of fraud, re- of the total revenues to be expended, in strain the trustees from entering into such contract as they may award to the bidder. Kelly v. City of Chicago, 62 Ill. 279." In People v. Kent, 160 Ill. 655, 43 N. E. 760, the relator had submitted a bid in conformity with specified conditions which was $3,536 less than that of any other bidder, and he sought to compel Kent, who was the commissioner of public works of Chicago, to let the contract to him under the provisions of the same section heretofore referred to in this opinion. This court held that Kent was a proper officer to determine who was the lowest responsible bidder and award the contract, and on page 662 of 160 Ill., on page 762, of 43 N. E., in the opinion, said: "It appears that the defendant, after investigating the records made by the relator in doing similar work before, and the other matters referred to in his answer, determined that the relator was not the lowest responsible bidder. He was vested with the exercise of official judgment and discretion, with which, in the absence of fraud, courts have no right to interfere." the discretion of the commissioner of public works and under his direction, for the repair of streets upon which there is an unusually heavy amount of traffic, the remaining 85 per cent. obtained from each ward (as in the discretion of the commissioner of public works shall be needed for immediate use) to be expended, under the direction of said commissioner, for the repair of streets and alleys in such ward, the balance thereof to remain to the credit of such ward account, to be used as occasion required. It was clearly the intention of the city council, in the appropriation ordinance of February 21, 1908, to appropriate the license fees collected to the repair of streets, and this was what the statute provided should be done with such fees. [3] It is not essential to the validity of an appropriation of money that it should be for an amount certainly ascertained prior to the appropriation. People v. Miner, 46 Ill. To the same effect is Hallett v. City of El- 384. gin, 254 Ill. 343, 98 N. E. 530. It is also objected that there had been no ordinance appropriating a sufficient amount of money for the repairs in question. The appropriation ordinance, it is true, only appropriated $50,000 from the general fund for the work in question, but that was not all. The city council in the appropriation bill of 1908, adopted February 21, 1908, provided: [4] It is also urged that the contract is invalid because the time of execution extended beyond the fiscal year for which the appropriation was made, and in that respect was not according to the advertisement for bids. The contract provided that: "Said work shall be commenced on or before the 2d day of June, A. D. 1908, shall progress regularly and uninterruptedly after it shall have dered by the commissioner of public works, and been begun, excepting as shall be otherwise orbe finished and fully completed on or before the 1st day of July, 1909, the time of commence ment, rate of progress and time of completion being essential conditions of this contract." "For restoration of streets where excavations have been made by plumbers, sewer builders, etc., $75,000; for repair of asphalt streets outside of contract reservations, $50,000; for repair of streets in addition to the sums above appropriated, all income from the vehicle tax collected under provisions of an ordinance By other parts of the contract the manner passed February 2, 1908, after deducting there of its execution, number of men to be emfrom the cost of collection; for removal and disposal of garbage, street and alley cleaning, ployed and progress of the work were to be repairing improved and unimproved streets, and absolutely as directed by the commissioner of public works. That officer had the power, | signee, is claiming pay, and whether the under the contract, to direct the number of amount claimed is owing for such work, and men to be employed, to suspend the work on those questions have been answered in the account of weather conditions and order its affirmative by the verdict of the jury and resumption, to make alterations in the work, the judgments of the superior and Appellate and determine the value of the work added Courts, and we are unable to say from the or omitted. It is shown by the evidence that evidence that they were wrong. the work was at one time suspended by order of the commissioner of public works. It is undoubtedly true that there are many objections to the contract which, had they been made at the proper time and in the proper manner, would be entitled to consideration, but that is not the question involved in this case. The sole question, so far as the right to recover on the contract is concerned, is whether, after making the contract and after the contractor has fully performed according to its terms and conditions and as directed by the city officials, and after the city has thereby received the benefit of the work, labor, and materials, the city is now in the position to set up the informalities and irregularities urged, under the circumstances of this case. The contract sued on was of such a nature that the city could lawfully have entered into it. The city was charged with the duty of keeping its streets in repair for public use, and was authorized by law to make the necessary expenditures and contracts for such purposes. It could and did appropriate, by ordinance, money from its general fund, and in addition thereto had been authorized by the Legislature to impose license fees on vehicles using the streets and use the fees collected for such repairs, and by ordinance the city appropriated such fees for the purpose provided by law; that is, the repairs for which the contract was entered into. The reason and purpose for such legislation are apparent, and the probable amount to be realized and expended from such fees appears in the record. In Village of London Mills v. White, 208 Ill. 289, 70 N. E. 313, we held that, where a [5] There is a distinction between contracts which are ultra vires and contracts which are within the power of the city to make, but which have been irregularly or il-village board has power, by ordinance, to legally made, but have been performed in good faith. In Dillon on Municipal Corporations (5th Ed.) § 1611, it is said: "A municipal corporation, as against persons who have acted in good faith and parted with value for its benefit, cannot, unless by virtue of some statutory provision, set up mere irregularities in the exercise of power conferred, as, for example, its failure to make publication in all of the required newspapers of a resolution involving the expenditure of moneys. Such failure might have the effect to invalidate a local assessment upon the abutter if there were no grounds of estoppel, this being a matter in invitum, but as regards a bona fide contractor with the city who had expended money for its benefit in respect of a matter within the scope of its general powers, the contract would not be ultra vires in the true sense of that term, and the city would be estopped to set up as a defense its own irregularities in the exercise of a power clearly granted to it." This principle applies to the case at bar. It was not shown that the McGovern Company did not enter into the contract in question and carry it out in good faith. Whether or not it did so was a question of fact and a matter of proof that has been settled in its favor. The only argument against its good faith in making the contract was in making the so-called unbalanced bid in the manner it did. The reasons for making the bid in that manner have already been referred to. It might have been ground for rejecting the bid, but where the city accepted it, and the company did the work under it and charged according to the bid, can the city now take advantage of that fact or of the other matters urged against the legality of the contract? From the whole record the principal questions are whether the McGovern Company grant to the owner of a telephone line the use of its streets and alleys, and where the consent to such use is given by resolution merely, and where the licensee, with the knowledge and consent of the village authorities, has accepted and acted upon such resolution by erecting poles and stringing wires in the streets and alleys, the license so granted thereby becomes a contract which is valid and binding upon the parties thereto, and cannot be revoked by the village, and that the village cannot be heard to say that the written consent must in the first instance have been given by ordinance, and it will be equitably estopped so to do. In County of Coles v. Goehring, 209 Ill. 142, on page 165, 70 N. E. 610, on page 616, it is said in the opinion: "Where a statute, in authorizing a municipal corporation to exercise a certain power, specifically regulates the mode in which that power is to be exercised, but the municipal authorities exercise it in a manner different from that prescribed by the statute, the municipality will be of the power when it is called upon to pay for estopped from setting up the irregular exercise what it has received, where the proof shows that it has received and accepted the benefit of the contract, thus irregularly entered into." A large number of authorities are cited in the opinion in that case, among others, County of Jackson v. Hall, 53 Ill. 440, in which it was held that the county of Jackson was estopped from denying liability, although there was no contract made, for the building of a jail, inasmuch as the jail was accepted by the county authorities and used by them when completed; also Hitchcock v. Galveston, 96 U. S. 341, 24 L. Ed. 659, where the city the bonds were held to be invalid, and it was decided that the city was liable upon its contract, and that, although it had agreed to pay in a way in which it had no power to pay, having received the property, it was estopped to deny its contract. In City of Chicago v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Co., 244 Ill. 220, 91 N. E. 422, we held that, if a city may lawfully exercise a power, it may be equitably estopped, as right and justice may require, to question the validity of the exercise of such power on account of the manner in which it was done or because of the lack of required formalities, citing Chicago & Northwestern Railway Co. v. People, 91 Ill. 251; City of Chicago v. Carpenter, 201 Ill. 402, 66 N. E. 362; People v. Blocki, 203 Ill. 363, 67 N. E. 809; Village of Winnetka v. Chicago & Milwaukee Electric Railway Co., 204 Ill. 297, 66 N. E. 407; Village of London Mills v. White, supra. made by a municipality which are merely ultra vires in a modified or secondary sense may be ratified, and any defect in the manner of exercising the power thereby cured, and the municipality may likewise estop itself by acts in pais from setting up the defense of ultra vires. 2 Dillon on Mun. Corp. (5th Ed.) § 797." As to the defenses of accord and satisfaction and payment and set-off, these are for the most part questions of fact which have been settled contrary to the contention of plaintiff in error. The last warrant received by the McGovern Company, that of August 9, 1909, for the sum of $61,987.21, chargeable to the vehicle tax fund, was in payment of a bill for that amount marked "Estimate 47 and Final," and as shown on its face was the reserve on asphalt repairs for said amount on the contract dated June 1, 1908, total amount of repairing, $413,248.03; amount paid on former estimates, $351,260.82; amount due contractor, $61,987.21. This payment, as stated on the warrant, was for the 15 per cent. reserved from former estimates. It was not shown that the McGovern Company accepted it in full payment and satisfac In People v. Spring Lake Drainage and Levee District, 253 Ill. 479, on page 500, 97 N. E. 1042, on page 1050, which involved the power of a drainage district to make a stip-tion of all the unpaid bills which had been ulation, it is said: submitted to the city for work done under "Contracts entered into by a municipality the contract, but which had not been paid, which are prohibited by express provision of the law, or which under no circumstances could be or that it was accepted as anything more legally entered into, are uniformly held to be than it purported on its face to be the final ultra vires and void, and cannot be rendered payment of the reserve withheld from such valid, as against the municipality, by receipt of| the consideration or other matter of estoppel, bills as had been accepted and for which warand cannot be rendered valid and binding by rants had been previously issued for 85 per any act of the municipality ratifying the same. cent. thereof. At the time of the trial Do1 Dillon on Mun. Corp. (5th Ed.) § 323. There is another class of municipal contracts which are usually classed as ultra vires which are only so in a limited or secondary sense. These are contracts which are within the general powers of the corporation, but which are void because the power was irregularly exercised, or where some portion of an entire contract exceeds the corporate powers, but other portions of the contract are within the corporate powers. This class of municipal contracts is well illustrated by the case of City of East St. Louis v. East St. Louis Gaslight & Coke Co., 98 Ill. 415, 38 Am. Rep. 97. In that case the city of East St. Louis contracted for the lighting of its streets with the gas company, at a fixed price per light, for the term of 30 years. A suit was brought by the gas company to recover the monthly installments that were past due under the contract. The city defended on the ground that the contract was ultra vires, and that no suit could be maintained thereon. This court held that the lighting of the streets was a pur pose clearly within the corporate powers of the city; that the contract had no element of illegality in it, and that it was only illegal in respect to the term of its duration; that, the corporation having received the benefits under a contract which was merely ultra vires, it was bound to pay for the benefits received; and that the rule applicable to municipal corporations in this regard was the same as in the case of a private corporation. Many cases are to be found applying this rule, and the principle is now firmly established that the doctrine of ultra Most of the refused and modified instruc vires is not applied (except in cases where the tions which are complained of were drawn contract is prohibited by some rule of law) where its enforcement would enable the municipality and offered on the theory of counsel for plainto obtain an unconscionable advantage of the tiff in error as to the invalidity of the conother party to the contract, and that municipal tract, and the subject-matter of these instruccorporations, as well as private corporations and natural persons, are bound by the principles tions has been sufficiently considered. Other of common honesty and fair dealing. Contracts instructions on accord and satisfaction, pay. herty, who had been superintendent of streets, and Redieske, the deputy superintendent, were both dead. Evidence offered, and the admission of which was refused, would not have been determinative of the issues, and therefore would not have been material. The plaintiff in error did not show by any tangible or proper evidence that the McGovern Company ever waived its claim, nor any circumstances amounting to a waiver of the amounts claimed. There was a misunderstanding about the subject-matter of the claim as shown by subsequent correspondence, which was not remarkable considering the vast amount of work done and the manner in which it was carried on in different localities, sometimes on different streets or in different portions of the same street at the same time. Nor can it be said that the claim was not proven by proper evidence. The amount of work done was shown and the amount paid for was shown. If the defendant in error was entitled to recover at all he was entitled to recover for this difference, and that was the amount of the verdict and judgment. |