The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1917-05-14
From Foster County.
From RurIeiah County.

Oscar H. VIII, A. c. Hinckley,
Arthur Van Horn and F. H. Register.
plaintiffs and appellants, VS.. The City
OF Bismarck, in Burleigh county, State
Of North Dakota, municipal corpora
ton; A. w. Lucas, r. G. Battey, c..
Bertsch. r. L. Best, and c. N. Kirk
constituting the board of city commits
sioners of the city of Bismarck, and
Ford Paving Company, a foreign cor
poration, defendants and respondents.
Syllabus:
/. Prior to the letting of a contract
for paving, the city commission of the
city of Bismarck created a paving dis
trict, directed the city engineer to pre-
pare plans, specifications and esti-
mates, approved the same, placed them
on file and passed a resolution declar-
ing the work necessary to be done.
Immediately thereafter, the commits
sion published resolution of neces-
sity in conformity with section 1904,
c. L. 1918, in the official newspaper
of the city and concurrently with such
publication advertised under section
3705, c. L. 1913, for bids for doing the
work. Held, that the foregoing pro-
ceedings were regular and that sec
ton 3T05 does not require that the
publication Of the proposals for work
be delayed until the publication of the
resolution OF necessity has been COM
pleted.
2. While it is the duty of a city
commission to consider protests which
may be entered against an improve
ment to be paid for by special assess
ment, the failure to consider and pass
upon the sufnciency and validity of
protests OF owners of less than the
majority OF property in the improve
ment district at the next regular
meeting of the commission after the
expiration of the time for filing pro-
tests Is not a jurisdictional defect,
where it appears that no protests were
hled within the statutory period and
that such protests as were filed prior
to the letting of the contract were
versely by the paving committee of
the city commission consisting of the
entire commission.
3. Where citizens paving commit
tee" co-operates with the city commits.
sion in the selection of paving mate
rial, such cooperation Is not to be
viewed with suspicion; and where prop
erty owners within a paving district,
following the suggestion of a "citi-
Gems" paving committee" that such
owners refrain from signing petitions
expressing preference for material
pending an investigation by the said
COMMITTEES, by their non-action leave
the city commission with full authori-
ty to select paving material, held that
acquiescence in and assent to such CO.
operation does not amount to malfeas-
ance on the part OF the members of the
city commission.
e. Where q proposed contract for a
public Improvement contains clauses
delegating to the city engineer powers
by the city commission, it is proper TO
assume that the city engineer will act
In conformity with the wishes of the
city commission as to such matters.
nN@ - 3
tract for public Improvement which
give to the city engineer the super
yisory power necessary to insure salts
factory completion of the work in con-
formtty with the plans and specifica-
tions are held not to violate section
370S, of the compiled laws of 1913, re-
curing the letting of such contract to-
the lowest responsible bidder.
8. Where proposed contract for
public work contains stipulations UNI
der which the quantity of work is sub
ject to maximum reduction Of 15 per
cent and where the proposal for bidg
bidders bid upon a number of items of
material and work, and the contract
for the same embodies q schedule of
unit prices; held that the permissive
alteration In quantity within a given
maximum docs not render the quantity
of work indefinite, and does not eIimin-
ate competition in bidding.
z. Where a contract was let to a
corporation which was not at the time
doing business within the state, held
that entering into such contract was
not doing of business within the state
within section 136 Of the constitution
and sections 1898 and $40, c. L. 1919
and that such contract is not invalidat-
ed by section 52z2 OF the compiled laws
not be prohibited under sucl. contract
where it appears that the corporation
complied with the statutory require
ments and obtained from the secretary
OF state a license soon after the con-
tract was let
Appeal from the district court Of
Burleigh county; Hon. VIM. l.. Nuessle,
judge.
Judgment for defendants. plaintiffs
appeal.
Affirmed.
Opinion Of the court by Birdzell. J.
Robinson, j. dissents.
Christianson. J., being disqualified
did not participate Hon. J. a Co1ey
sitting In his stead.