The Winslow mail., 1921-10-28


ifications and estimates adopted by
the Town of Winslow to the Secre-
tary of Agriculture We believe that
he may be compelled to do so by
mandamus. We believe that mas
much as he is really acting as the
agent for the Town of Winslow, as
expressed by himself with reference
to the Flagstaff work, he2 should
transmit the plans, specifications
and estimates with his approval We
believe, however, that there is no
legal duty resting upon him to give
his approval In other words, in
our opinion, legally the matter of
giving or Withholding his approval
is in his discretion, but the matter
of transmitting the plans, specifica-
tions and estimates is not in his dis
cretion, but it is his legal duty to
do so and leave the matter to the
determination of the Secretary of
Agriculture. In our opinion, the
granting or Withholding Federal Aid
is not within the province of the
State Engineer but in the province
of the Secretary of Agriculture and
his agents. In our opinion, the
State Engineer is not, by virtue of
his office, vested with any duties of
guardianship over the people of
Winslow. No state funds enter in
to the construction of the project
and it is the elected officials of the
Town of Winslow who are respons-
ible to the property owners of The
Town Of Winslow. The fact that the
State Engineer is acting in good
faith and doing what he believes is
for the best interests of the Town of
Winslow makes no difference. His
powers are prescribed by law. and
it seems plain to us that he is not
confining his actions to those pow
erS.
However, it seems to us quite like
ly that if the Town of Winslow
brings an action to compel the State
Engineer to perform the ministerial
duty of transmitting the plans, spec
ificatiOns and estimates to the Sec
retary of Agriculture, the result
might be the loss of all Federal Aid
for this project. The Secretary of
Agriculture and his agents might
feel justified in disregarding the po-
sition taken by the State Engineer,
and if they acquiesce in the State
Engineers position, the result would
undoubtedly be the loss of all Fed
eral Aid to the Project The Town
of Winslow is now tied up under an
award of contract to Warren Broth
ers Company until the question of
Federal Aid is determined. The State
Engineer is holding up the deter
mination of the question of Federal
Aid In our opinion, the interest
that either Warren Brothers Com
pany or the State Engineer have in
the matter is not sufficient to justify
the taking of such a course and los
ing the Federal Aid to the Town Of
Winslow. We believe that the State
Engineer should Immediately trans
nit the plans, specifications and es
Inmates for the work to the Secre-
tary of Agriculture without recon-
memo alton, if he feels that he can
net cCnscientiously recommend the
same This would undoubtedly re-
suit in some determination of the
matter at an early date.
But. since the State Engineer re-
fuses to do this, we do not believe
that you should take the same posi-
ton that he is taking, thus prejud-
icing the interests of the Town of
Winslow between the two opposing
interests. We suggest that you ad-
wise the Town of Winslow that you
will waive all rights to the contract
upon condition, however, that before
you do SO they put themselves in po-
sition whereby they can legally COM
pei the construction of the road at
the price of the low concrete bid.
In our opinion, this bid as submitted
to the State Engineer is not legally
enforcible. We have been advised
that Mr. Dan LeRue has given a let
ter to the Town of Winslow stating
that he will put the work in for this
price. We do not believe such letter
is legally binding. Furthermore, we
cannot see how the Town of Wins
low can safely accept the unsup-
ported obligation of contractor
If you simply waived your right to
the contract as matters now stand,
the result would probably be that
the Town of Winslow would begin
new proceedings for concrete, and
when the proceedings were finished,
same or higher price than the Bit
ulithic bid, and the result be that
Winslow would gain nothing except
what we consider a poorer type of
pavement. The guarantee once
made by the State Engineer, if in
tended as such, is not legally bind
ing because the State Engineer has
no legal authority to make such
guarantee.
1t is our idea that you suggest to
the Town of Winslow that they OBJ
tain from the low concrete bidder a
Surety Company bond for not less
than $15,000.00, in proper form, by
which the Town of Winslow will OBJ
ligate itself to put thru the neces-
sary proceedings for concrete and
advertise for bids and said bidder
will be obligated to bid at the same
price at which he bid to the State
Engineer, omitting the loopholes left
in that bid. If the Town Of Wins
l