delivered the opinion of the court.
Section 50 of Art. IX, of Chapter 24, of the Statutes, requires all public work in cities, when the expense thereof shall exceed $500 to be let to the lowest responsible bidder in the manner to be prescribed by ordinance, provided that such contract may be entered into by the proper officer without advertising for bids by a vote of two-thirds of the aldermen. The ordinance of appellee provides that the city engineer «ball prepare plans and specifications for any public improvement when one is ordered; that proposals for bids shall be advertised for ten days, and that the advertisement shall state where specifications for the improvement may be seen with the time when and the place where the bids will be opened.
The advertisement in the present case contains no reference to specifications nor when or where the bids will be opened. It only asks for bids for drilling two twelve-inch wells and test holes, which the bill represents will not cost over $500. Under such advertisement, bids were received from two bidders, one offering to do the work according to the specifications for $3,580, the other for $7,832. On February 23, 1911, by a vote of seven aldermen out of twelve, the bids were referred to a committee with power to act. The committee entered into a contract with the highest bidder to do the work and furnish the equipment for $7,832. This contract was approved March 2, 1911, by the vote of only seven aldermen.
The bill praying to have the city enjoined from acting under or recognizing this contract was filed April 28, 1911, to the May term of court, which began May 8th. On the first day of the term the defendant asked for time to answer and it was given until May 15th when it filed a general demurrer. No further action was taken by either party until June 30th when the demurrer was sustained. The complainant on July 3rd amended his bill. The original demurrer was permitted to stand as a demurrer to the amended bill, and on July 3rd the demurrer was sustained and the bill dismissed for want of equity.
Appellee insists that the demurrer was properly sustained for two reasons (1) that complainant was guilty of laches in filing his bill, and in his further failing for practically two months to make any effort to bring the matter to a hearing before the court, (2) if the advertisement was insufficient yet “the contract was not ultra vires and the city was urging the contractor on with the work and accepted the benefit.”
As to the first contention of appellee the question of laches was not raised in the trial court. Where the complainant has not in his pleading undertaken to excuse the delay, the defendant if he desires to avail himself of the defense of laches must set it up in his answer, so. as to give complainant an opportunity to amend by making allegations accounting for the delay. Hutchinson v. Bambas, 249 Ill. 624; Henshaw v. State , Bank, 239 Ill. 515; Zeigler v. Hughes, 55 Ill. 288. The bill alleges that the contractor is engaged in boring the wells and will within a few weeks proceed to install the pumps, etc. It does not appear that at the time the bill was filed, anything had been done by the contractor except part of the work called for in the advertisement and no injunction is sought against the digging of the wells. The defendant city, if it was interested in having the suit disposed of, could have expedited the hearing as well as the complainant after the term began.
No question is made concerning the apparent defect of parties. The contractor, to whom the city awarded the contract, is not made a party, but no mention of that fact is made by either party to the suit, although the rights of the contractor are such that the final decree might have materially affected it. Since counsel for neither party has discussed this question, we are not called upon to express any opinion concerning it.
The bill alleges that the contract made by the city was invalid because of the failure of the city to comply with the statute and ordinances in reference to letting contracts for public work by the city and the requirement of the ordinances that the advertisement shall state the nature and extent of the improvement with the place where the specifications may be seen. The ordinances also require that before a contract is let an estimate shall be obtained of the probable cost. The advertisement for bids only asked for bids for boring wells. The bill alleges that the expense of boring the wells will not exceed $500 and yet a contract for boring wells, installing pumps and other equipment, etc., at an expense of $7,832 was made under this advertisement. It is alleged the contract price is much in excess of the reasonable value of the work and material contracted for and was made when there was a bid to do the work and furnish the equipment according to the specifications for $3,580. The ordinances also require that the city engineer shall prepare plans and specifications and the bill alleges that the plans and specifications were neither prepared nor approved by the city engineer. If the allegations of the bill are true there appears to have been a total and wanton disregard of the law in the making of that part of the contract sought to be enjoined.
Cities are .given by the statutes the right to contract for public improvements but in making contracts they must proceed according to law. There is a distinction “between contracts where the parties have an inherent power to contract, and contracts where as here, there is no inherent power to contract, but the contract is purely by virtue of a special statutory authority. In the former instance, the contract is presumed to be lawful, and it devolves upon those who claim its invalidity to show that it is unlawful. But in the latter instance, as we have heretofore shown precisely the reverse is held. The burden there is upon those seeking to enforce the contract to show that it is within the statutory authority. It is, therefore, not upon the plaintiffs in error in the first instance to establish the invalidity of those contracts, but upon the defendants to establish their validity.” Dement v. Rokker, 126 Ill. 174.
Where public officers derive their' powers from and their duties are prescribed by statute all persons dealing with them in reference to public affairs are bound to take notice of their powers and duties and to see that such officers are acting within- the scope of their authority. Tammer v. Lavalle, 92 Ill. 263; Bogne v. People, 224 Ill. 449. The allegations of the bill charge the appellee with a total disregard of the statutes and city ordinances and are sufficient to require an answer. It was error to -sustain the demurrer. The decree is reversed and the cause remanded with instructions to overrule the demurrer.
Reversed and remanded.