Burrell v. City of Portland

Mr. Justice Bean

delivered the opinion of the court.

The gravamen of the complaint, as we understand it, is that the proceedings are void for the reason that it was illegal for the municipality to employ a consulting engineer, invite bids, and execute a contract based upon plans and specifications made by such engineer. Section 304 of the charter of the City of Portland provides in part as follows:

“The city engineer shall keep himself informed of the condition of all public streets, squares, parks, grounds, highways, bridges, sewers and street lights, and all plans and specifications for the construction, improvement or repairs thereof shall be made by him or under his supervision; and he shall have supervision of all surveys of streets, squares and parks, and all construction, improvements and repairs herein specified, whether such work be done by contract or otherwise. * *”

*109 And section 305 of the charter:

“The city engineer shall be the consulting engineer of all boards and commissions authorized by this charter or created hereafter in pursuance- thereof, but he shall receive no compensation or salary therefor other than his salary as city engineer.”

From a careful examination of the allegations of the complaint, we fail to discover whether or not the plans and specifications referred to were made under the supervision of the city engineer. Neither is it shown that the work done .by the consulting engineer was contrary to the views, nor without the sanction of the city engineer. Though the city has such officer as the latter who is competent, yet we notice from the complaint that it is not alleged that the consulting engineer employed by the city was not capable of drawing plans and specifications which would be more advantageous to the city and render the bridge safer than it would otherwise be. No facts are alleged indicating that by reason of having obtained the services of a consulting engineer the city, in the end, would not reap a greater benefit and secure a better bridge in return for the compensation agreed upon, and in the absence of a showing to this effect such result would be presumed. The city engineer does not complain that the consulting engineer is usurping his functions. The complaint contains no allegation of fraudulent intent on the part of the officers of the city.

1. The question therefore to be determined is whether or not the city had the power to make the contract of employment with the consulting engineer. It is contended on behalf of plaintiff that the city council has no power to create an office not provided for in the charter. Mr. Dillon, in his work on Municipal Corporations (vol. 1 [5 ed.] § 424), in regard to officers says:

“But where the services to be performed are professional or private, rather than public or official, an *110 employment under an ordinance for a fixed time, at a fixed sum for the period, has been held to be a contract, and not subject to be impaired by the corporation. Thus the appointment or election by the city council, for a fixed and definite period, of a city officer — for example, a city engineer, for one year, at the rate of $1,000 per year — if accepted by him constitutes, in the opinion of the Supreme Court of Massachusetts, a contract between him and the city. * *”

In distinguishing officers from employees, Mr. Dillon, in section 425 of the same work, says:

“The principles embodied in the previous section have their natural application to those persons in the municipal service who are properly to be regraded as employees rather than as public officers. It has been said that the essential element in a public office is that the duties to be performed shall involvé the exercise of some portion of the sovereign power, whether great or small, but in the development of municipal affairs it has been found necsesary to an extent which is steadily increasing to employ persons who cannot fairly be regarded as officers, but who occupy positions which are merely employments. The question whether a person is an officer or a mere employee is one which is involved in difficulty, and for the determination of which it is probable that no satisfactory rule can be enunciated. The question who are officers and who are employees will almost necessarily be determined in each jurisdiction by decisions made upon the facts of each particular case, * * the duties attached to the position, and, to a minor degree, its relation, to the general scheme of the municipal government, as, for example, its subordination to the incumbent of another office or position. * *”

In the case of People v. McAdoo, 98 App. Div. 312 ( 90 N. Y. Supp. 689 ), it was held that a person whose duties are clerical and relate not to the public, but to the head of the department who is charged with the discharge of the duties of the office, is not a public officer. In Quintard v. N. Y. 51 App. Div. 233 ( 64 N. Y. Supp. 904 ), counsel for department of charities and corree *111 tions of Brooklyn held to be an employee, and not a public officer. Dunne v. N. Y., 116 App. Div. 331 ( 101 N. Y. Supp. 678 ), is a case where the inspector of masonry in New York was held to be an employee, and not an officer; also Grieb v. Syracuse, a case in which the superintendent of sidewalk and sidewalk repairs was held to be employee, and not an officer ( 94 App. Div. 133 : 87 N. Y. Supp. 1083 ). In the case of Cunningham et al v. Umatilla County et al., 57 Or. 517 ( 112 Pac. 437 ), it was decided that the county court had authority to employ a detective to act independently of the sheriff in the detection of the commission of crimes, and that a suit would not lie to enjoin the payment of a warrant drawn for the payment therefor. The fact that an official attorney is provided for a municipality by law does not preclude the municipality from employing other or additional attorneys to assist him in prosecuting or defending suits against the municipality, unless there is some special restriction in the charter. 2 Dillon (5 ed.) § 824, p. 1245, and notes of cases there cited.

2. Whenever a power is given by statute, everything necessary to make it effectual is implied. It is a well-established principle that statutes containing grants of power are to be construed so as to include the authority to do all things necessary to accomplish the object of the grant. The grant of an express power carries with it by necessary implication every other power necessary and proper to the execution of the power expressly granted. Lewis, Sutherland, Statutory Construction, § 508. In the case of Avery v. Job, 25 Or. 512, 524-525 ( 36 Pac. 293, 296 ). Mr Justice Beak says: “No principle of equity jurisprudence is, perhaps, better established than that when the officers of a municipal corporation are clothed with a discretionary power, and are acting within the scope of such power, a court of equity will not sit in review of their proceedings, or *112 interfere by injunction, at the suit of a private citzen, unless fraud is shown, or the power or discretion' is being manifestly abused to the oppression of the citizen. The fact that the court would have exercised the discretion in a different manner will not warrant it in interfering. 2 High, Injunction, 1240; Spring Valley Waterworks v. City of San Francisco, 82 Cal. 286 ( 22 Pac. 910 , 1046: 6 L. R. A. 756: 16 Am. Rep. 116 ).”

3. It is asserted on behalf of the plaintiff that the consulting engineer could not act for the city in such capacity for the reason that he had not passed the civil service examinations. Following the enactment of a civil service law by the federal congress, states have enacted similar statutes for the purpose of giving some assurance to the citizens, electors, and taxpayers that, where the political views of the incumbent of the public office could not rightfully affect, or in any manner determine, the means or method of the performance of his official duties, and where he stood in no confidential position towards a superior, that in such case his appointment to, or his tenure of, such office, should in no way depend upon or be affected by his politics. An appointment was to be based solely on merits to be proved by competitive examination, free to all candidates; and the person who was best qualified, all proper circumstances being considered, should be appointed and should be continued in office until he voluntarily resigned or was removed for incompetency or misconduct after a hearing upon charges prefered against him. 1 Dillon, (5 ed.) § 397, p. 684. Section 306 of the city charter provides that:

“All appointments to and promotions in the subordinate administrative service of the city shall be made solely according to fitness, which shall be ascertained by open competitive examination, and merit and fidelity in service, as provided for in this article. The provisions of this *113 article shall apply to the incumbents of all offices, places and employments in the public service of the city except the following. * *”

Here follows a list of officers, including the city engineer, etc. A careful examination of the- provisions of the city charter relating to civil service and a consideration of the scheme, purpose, and origin of the same leads us to believe that the employment of a special architect, consulting engineer, and the like was not intended to be governed by these rules. This must be so from necessity, otherwise the board of examiners would need to consist in part at least of members eminently skilled in that profession. The continuous employment of a skillful, experienced engineer, such as might be desired and also be necessary in undertaking the erection of public works of great magnitude, would entail a large expense to be borne by the taxpayers of the city. We think that the executive board had authority to employ a special consulting engineer in case it was deemed expedient and necessary.

4. Plaintiff also objects to the contract because of the expensive material and unnecessary ornaments provided for in the specifications, and for the reason that it was let upon the unit plan of construction. The charter does not provide in detail as to how the bridge shall be built. Great precaution should be taken in order to contribute to the permanency of the structure. The quality of material and the ornamentation, and the amount of expense to be incurred, therefor, are matters resting in the discretion of the executive board. Their decisions should not be interfered with when a showing of fraud or manifest abuse is lacking. Whether the contract shall be let upon the unit plan, or by some other method, should be decided by the board, and not by the court. 12 Cur. Law, p. 1479; Shannon v. Portland, 38 Or. 382 ( 62 Pac. 50 ) ; Anderson v. St. Louis, 122 Mo. 61 ( 27 S. *114 W. 610 : 26 L. R. A. 707), and note. Statutes which provide for letting public contracts on competition usually grant some discretionary power to the municipality which receives bids to determine what bid is more advantageous to the public interest. The discretion of the public authorities in determining who the best bidder is, is ordinarily not subject to review if fairly exercised. 1 Page and Jones, Taxation by Assessment, § 497. The validity of the act authorizing the construction of the bridge in question, and the authority of the municipal officers in that regard, was before this court in the case of Kiernan v. City of Portland, 57 Or. 454 ( 111 Pac. 379 : 112 Pac. 402 ). A motion to dismiss this appeal, supported by affidavits, has been made by defendants for the reason that the contract for the Substructure of the bridge has been practically executed, and it is impossible for a court of equity to grant the relief sought. It appears, however, that about $33,000 remains to be paid upon the Modjeski contract. In view of this status, we do not deem it necessary to discuss at length all the questions referred to in the briefs. We are of the opinion that as the case now stands the plaintiff is not entitled to the relief prayed for.

Therefore the decree of the lower court is affirmed.

Affirmed.