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Western Lion Ltd v. City of Mattoon

OPINION FILED APRIL 9, 1984.

WESTERN LION LIMITED, PLAINTIFF-APPELLANT,

v.

THE CITY OF MATTOON, DEFENDANT-APPELLEE (COLLECT-ALL CORP., DEFENDANT).



Appeal from the Circuit Court of Coles County; the Hon. William J. Sunderman, Judge, presiding.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

The plaintiff appeals from the orders of the circuit court of Coles County dismissing the complaint and denying its motion for reconsideration and for leave to file an amended complaint. The plaintiff, a corporation engaged in the handling of solid wastes, contends that the defendant, city of Mattoon, did not follow the requirements of section 4-5-11 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 4-5-11) when it awarded a contract for the collection of municipal garbage. The plaintiff further claims that its constitutionally protected rights of due process and equal protection have been denied. On appeal, the plaintiff also contends that the award of the contract constitutes an illegal waste of the taxpayers' funds. We affirm.

Defendant, city of Mattoon, is a commission form of municipal government. On May 3, 1983, the city published a "proposal for bids" for the contractual service of municipal garbage collection. The right to reject any and all bids and to accept the one that the city deemed most favorable was expressly reserved. Contract specifications were prepared and issued by the city. The contract called for the collection of garbage from all residences and buildings occupied for residential purposes in the city as well as from six containers located at various city parks and the disposal of the garbage at an approved landfill. The contract was for a period of three years commencing on July 1, 1983.

On June 7, 1983, the bids that were submitted pursuant to the published proposal and specifications were opened during a regular meeting of the city commission. Plaintiff's bid of $69,899 per year was the lowest. However, the city rejected that bid and accepted the bid of Collect-All Corporation. That bid was in the amount of $96,000 per year. The city of Mattoon had paid Collect-All the identical amount in the previous two years when Collect-All had performed the same service.

On June 22, 1983, the plaintiff filed a complaint against the city of Mattoon and Collect-All asking that the defendants be enjoined from entering into the contract and that the contract be awarded to the plaintiff along with other appropriate relief.

On June 28, 1983, the city of Mattoon filed its motion to dismiss the complaint under section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-619). The affidavits of city commissioner Marjory Metzger and Mayor Roger Dettro were filed in support of the motion. They stated that they voted to award the contract to Collect-All after an investigation of the bidders and a determination, based upon past service also, that awarding the contract to Collect-All would be in the best interests of the city. A hearing on the motion was held on June 30, 1983. At that time counteraffidavits were submitted by the plaintiff to show that it was capable of performing the collection contract. After hearing the arguments of counsel, the circuit court granted the city's motion to dismiss and held that the decision as to which bid to accept was discretionary with the city commission.

Before the entry of a written order, the plaintiff filed a motion for reconsideration and for leave to amend the complaint on July 5, 1983. The plaintiff sought to change its original one-count complaint into a four-count complaint requesting additional relief and including a count based upon the city's alleged illegal waste of taxpayer funds. A proposed amended complaint was attached to the motion. The circuit court denied this motion on July 18, 1983, and thereafter entered a written order dismissing the plaintiff's complaint with prejudice. No order was entered as to defendant Collect-All. However, the July 18, 1983, order found there to be no cause for delaying enforcement and appeal of the order under Supreme Court Rule 304 (87 Ill.2d R. 304). A timely appeal was filed on July 20, 1983.

• 1 On appeal, plaintiff claims that since the city of Mattoon did not adhere to the requirements of section 4-5-11 of the Illinois Municipal Code when it awarded its garbage collection contract, the city should be enjoined from entering into the contract with Collect-All. The circuit court found that statute to be inapplicable to this contract. We agree.

Section 4-5-11 states in pertinent part:

"Except as otherwise provided, all contracts, of whatever character, pertaining to public improvement, or to the maintenance of the public property of a municipality involving an outlay of $1,500 or more, shall be based upon specifications to be approved by the council. Any work or other public improvement which is not to be paid for in whole or in part by special assessment or special taxation, when the expense thereof will exceed $2,500, shall be constructed as follows:

(1) By a contract let to the lowest responsible bidder after advertising for bids * * *." (Ill. Rev. Stat. 1981, ch. 24, par. 4-5-11.)

By an expansive interpretation of the phrases "public improvement" and "maintenance of the public property" plaintiff claims that this statute should apply whenever a contractor does work of any type for a commission form of government where it is not paid out of a special assessment or special taxation and the cost exceeds $2,500. Specifically, plaintiff argues that the collection of garbage results in public improvement and that because the garbage is to be removed from six dumpsters placed on city property, this contract pertains to the maintenance of public property.

There appears to be no case law that construes the language of the statute in question. However, a review of the case law in other States in regard to the meaning of "public improvement" reveals that garbage collection is nowhere mentioned under this designation. On the contrary, the term "public improvement" is generally understood to mean any permanent improvement upon real property owned by the municipality. (Church E. Gates & Co. v. Jno. F. Stevens Construction Co. (1917), 220 N.Y. 38, 115 N.E. 22; Kansas City ex rel. Delargy v. Wells Brothers Construction Co. (Mo. App. 1932), 54 S.W.2d 449.) Certainly building and paving projects would be included in this category; however, garbage collection could hardly be called a permanent improvement upon real property owned by the city.

If the statute were to be read as the plaintiff contends, practically any positive act done by the city would require advertised bidding. We doubt that the legislature intended such a broad construction. Moreover, a statute that restricts the right of a city to contract by requiring a bidding procedure should not be extended beyond the language used. (People ex rel. Adamowski v. Daley (1959), 22 Ill. App.2d 87, 159 N.E.2d 18.) We note that the statute in question uses the word "construction" twice and "constructed" once in describing the types of contracts that would require bidding procedures. ...


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