dissenting. Section twenty-three of the city charter provides : “ That all contracts for public works, or for material or supplies ordered by the council, when the same exceeds five hundred dollars, shall be offered by the administrator of the department to which such contract pertains, at public auction, and given to the lowest bidder, who can furnish security satisfactory to the council, or the same shall, at the discretion of the council, be advertised for proposals to be delivered to the administrator of the department to which such contract pertains, in writing, sealed, and to be opened by said administrator in the presence of the Mayor and the Administrator of Finance, and given to the person making the lowest proposal therefor, who can furnish security satisfactory to the council.”
*5Section twenty-four provides, in substance, that on the application of one-fourth of the owners of property fronting on any unbanquetted street, after due publication, and no opposition by the majority of property owners on said street, the City Council shall order said banquet-ting to be made in accordance with lines and levels to be furnishe I by the City Surveyor; “and the whole cost of said banquettes, so made, shall be borne by the owner or owners of real property fronting on said banquettes in equal proportions according to the running foot frontage.”
Section twenty-three, it will be observed, provides the form for making all contracts for public works when they exceed five hundred dollars; and section twenty-four provides that the whole cost of banquettiDg shall be paid by the owners of property fronting on the banquettes whose construction the city has ordered after the publication of the petition of one-fourth of the property owners, and no opposition by the majority of property owners on said banquettes.
It is conceded that the amount of the contract in this case exceeds five hundred dollars. The question is, could the city, under the two sections of its charter referred to, make a contract with Page & Co. for banquetting the street in front of the property owned by the plaintiffs with Byrne’s Improved Concrete Banquetting, a patent improvement owned by said contractors ?
The plaintiffs insist that the resolution of the council directing the contract to be sold to said patentees necessarily excludes all competition; and, therefore, the contract is void because not made conformably to the requirements of section twenty-three, at public auction to. the lowest bidder.
This was the precise question presented in the case of Burgess Bennett et al. v. The City of Jefferson, 21 An. 143, and there this court held that: The principle of competition enunciated by the statute must be observed by the council in letting out contracts for the improvement of the streets, otherwise the owners of property fronting on the streets improved can not be compelled to pay the charges assessed against them for making the improvement.” The case at bar is covered by the ease cited and in my opinion should have the same solution.
The defendants, however, insist that even though the contract was not made in conformity to section twenty-three of the charter, the work was for the benefit of plaintiffs and they are bound to pay for it, on the equitable principle that no one should enrich himself at the expense of another. This maxim has no application to the case at bar. There is no reconventional demand set up by the defendants; there is no claim as a quantum meruit before the court. The simple question is, shall the contract for laying Byrne’s Improved Concrete Banquetting and the resolution of the City Council authorizing it be annulled, be*6cause they are in violation of section twenty-three of the charter, •which requires all contracts for public works where the amount exceeds five hundred dollars, to be sold at public auction to the lowest bidder.
In the absence of the authority delegated in the charter, the city could not make a contract binding the plaintiffs to pay for the banquettes in iront of their property. The law authorizing the contract imposes in section twenty-three of the charter the formalities that must be observed. Under the limitation, that all contracts for public works exceeding five hundred dollars must be made at auction to the lowest bidder, the law authorizes the city to contract for banquetting at the expense of the front proprietors.
As the contract in question was not adjudicated at public auction to the lowest bidder, it is obvious, the city had no authority to make it, and therefore it is not binding on the plaintiffs and should be annulled.
I therefore dissent in this case.
Kehearing refused.