The Montgomery advertiser., 1907-02-13

snail comply with such reasonable regulations as may be prescribed be. fore the bids are called for.
 The city ordinance recited the fact that the cost of the said paving is to be assessed against the property abut- ting on said street to the amount that such property has been benefited by such paving or improving, not to ex- ceed the increased value of said proper- " by reason of the special benefits de-
 lived from said improvement, and dir "a the city treasurer to arvertise
 Tor bids for paving the streets in &C., cordance with the specifications in the omce of the city engineer.
 The treasurer did 50 advertise. stating that bids on asphalt and bitu- hthic pavement are requested both with i've and ten years guarantee. And au bids under that notice having been rejected. the bill alleges that the City council then ordered a new advertise-
 ment and that only bids for ten years
 maintenance be received.
 Accordingly. the treasurer advertised
 Tor bids stating all bids to be of ten years guaranteed maintenance: and ad-
 vertisement also stated In a previous
 part of 1t tha. the street was to be paw
 eh with either vitrified brick. etc, all acordfng to plans and specifications on
 He In the city engineers office.
 Must Keep In Repair.
 The paper which Is referred to as plans and specifications, describes In detail the. manner in which the paving ' Is to be done; that bond shal be given and bids must be on the blank form which follows. and which goes more
 minuteiy into details. and provides that
 the party of the second part further agrees that, for period of two years from the date of the final estimate of the said work, he will keep in good or- der and repair, all the work done un- der this contract except only such part tor parts of the work as may have been
 disturbed after the final estimate of the-same. glazing, sewers, etc, and that whenevea directed by said engineer, said party would proceed to repair" This i is the contract which vas signed The compliments, both as taxpay CTS of the city and as persons whose ! property is liable to the assessments provided for. have the right to invoke
 the aid of a court of equity 10 restrain ! the execution of contracts and the fas- tening ot obligations and liens upon 1 the taxpayers of the city, if there be | no authority of law therefor. The object, In advertising for bids is to bring about competition and thus get the best offer that can be obtained so as to be able to select the lowest anu DoSt piuueT, dS the law QlreCtS. IL Is manifest then that, in order to ac- complish that purpose, the advertise ment and the bids must correspond. As said by the court in another case, to require the bids upon one basis and award the contract upon another, would, in practical effect. be an aban- donment of all bids Inge vs. Board
 of Public Works. 135 Ala. 1s7. 200. Having advertised for bids with ten yaar matnfananca the city waQ uot authorized to close a contract with a two years maintenance. It would be impossible to tell whether or not that
 was the lowest bid that could have been obtained. If the bidders had | known that a two years maintenance
 would be accepted. 20 Am. & Eng. Ency. Law. p. 1169.
 The appellant claims that inasmuch
 as the advertisement refers to the plans and specifications on file in the
 engineers office, bidders could learn
 from that, that only two years main
 tenance clause would be required.
 Must Accord with Advertisement. Even if the clause in the latter part
 nf the proposed contract, could be con
 strued as a part of the plans and specifications referred to, the whole paper is referred to only as form, and
 when tho advertisement specifically i stated that ten year maintenance clause would be insisted on. we can not see how 1t could be understood otherwise that that while the form of the contract would be adhered to. and
 the specifications as to the character of the material and work would be insist
 ed on. yet that. the n1aintenanceAc clause
 should be for ten years, as stated in the notice. in place of two years. as stated In the form.
 Appellee also insists in his brief,
 A Al. AS. T
 to insert the ten year maintenance clause in the advertisement. but 1t is so stated in the bill and the submission and decree in this case was on the de-
 murrer and the motion to dismiss. Be- sides when the accredited officer of the city published such notice in the newspaper of the city and the contract was made on bids which came in in response thereto 1t must be presumed - that the city acquiesced in the terms
 Of the rlDtice. At any rate these were the terms on which bids were request ed and the only terms to which bid Hers could respond and 1t may be that contractors who did not care to enter sinto ten year guarantee, did not deem -it necessary to examine the plans and specifications on file.
 ''The Act. under which the city was proceeding authorized 1t to issue
 bonds for the purpose of paving, or otherwise improving the streets, and
 provided that the proceedings arising
 from the sale of such bonds shall be
 applied only to the paying or improv-
 ing designated In the ordinance pro-
 vidlng for their issue Acts 1900 Oo- cab pp. 1927 10S1.
 t No Authorization for Contracts.
 The city ordinance being An ordi- nance to pave South Hull street" etc,
 provided that said street should be
 paved and recites that as the cost against the property abutting on said
 street. to the amount that such proper
 ty has been benefited by such paving
 or improvement. not to exceed the in-
 reased value of said property by req
 son of the special benefits derived
 from such Improvement" and notifies
 persons interested thatsunless they file
 written objections within thirty days
 "the City Council will proceed to issue
 the bonds to pay for said pavement
 and make a contract for such paving"
 Tt will be observed that neither the Act, nor the ordinance authorize any contract to be made for future main.
 tenance. or any appropriation of the
 money to be raised by the sale of the
 bonds to the payment of any such con
 tract.
 Well considered cases hold tha. where a city Is authorized to contract for paving its streets, It has no author ity to incorporate ir the contract an agreement for future maintenance. Portland V. Bitum onous Paving Com pany (S3 Oregon, 3oD 72 Am. St 713, in which case 1t is said that Such a contract was calculated to incre ase the amount of its bid by the estimated