Jerry's Rides, Inc. v. Mayor of Baltimore

Hammond, J., delivered the opinion of the Court. The appellant, Jerry’s Rides, Inc. (Jerry), which had unsuccessfully sought a concession to operate trackless trains through the Baltimore Zoo area in Druid Hill Park, brought a mandamus action against the Board of Recreation and Parks and the Board of Estimates of Baltimore to require (a) that a contract for the operation of the trains awarded a competitor, Allied Amusements, Inc. (Allied), be awarded to Jerry, or (b) that the contract be cancelled, or (c) that it be cancelled and competitive bids be called for. The claim of Jerry was that the action of the city authorities in awarding the contract to Allied was illegal, arbitrary, capricious and unreasonable. Allied intervened, and the case was heard by Judge Tucker and a jury.

Judge Tucker ruled there was pre ¹⁶⁴ sented no issue of fact for the jury to pass on and that, as a matter of law, the exercise of the judgment of the City authorities in awarding the contract to Allied could not be disturbed by the court. Jerry appealed from the dismissal of the petition for mandamus. The Park Board decided in early 1960 to provide trackless trains to carry sightseers to various parts of the Zoo. A number of persons interested in providing and operating the trains submitted proposals.

Allied made an oral proposal on February 2. Jerry, on March 7, made an offer to furnish and operate two trackless trains (open air cars pulled by gasoline-powered tractors) made by a named manufacturer and costing about $24,000 apiece over a designated four-stop route. The suggested fare was ten cents between stops and thirty-five cents for the complete trip. The contract was to be for five years, with an option to renew for another five years.

The City was to receive twenty-five per cent of the gross receipts. On March 8, Allied made a written offer to furnish the same equipment, run over the same route for the same period of time at the same fares and to pay twenty-seven and one-half per cen1; of the gross receipts to the City. The Park Board appointed a committee to investigate the matter of installing trackless trains and the desirability of the various bidders and their proposals, consisting of a member of the Board and the Director of Parks, the Acting Superintendent of Parks, and the Zoo Director. In its written review of the background of the bidders, the committee set out the names of the individuals who owned the various corporate bidders, noting that: Allied’s owners (one of whom was a successful concessionaire) were business men of stature, achievement and good reputation, and recommended (1) that the term of the concession be five years with an option for another five years, the City to own the trains at the end of ten years; (2) the trains were to be of a type made by a specified manufacturer; (3) the fares were to be ten cents between stops and thirty-five cents for the entire ride; (4) the route was to be established by agreement, subject to change by agreement as the Zoo grew; (5) property damage and personal liability insurance was to be carried by the con ¹⁶⁵ cessionaire in named amounts; (6) the concessionaire was to furnish a surety bond of $1,000; and (7) that consideration be given to the sound business and financial stability and “best experience” of the respective would-be concessionaires.

The committee selected Allied as the bidder with the second soundest business and financial stability, and Jerry as the bidder with the best experience. At a meeting on April 5, the Park Board received and adopted in substance the recommendations of the committee. The members of the Board then talked to representatives of the bidders, one by one. Jerry repeated its original proposal with an increase of its offer to the City from twenty-five to thirty per cent of the gross receipts.

Allied reoffered 27l/2% of the gross receipts, but added 5°fo of gross income to be expended with the approval of the Park Board for the advertising and promotion of the train rides and the attractions of the Zoo. After hearing from all of the bidders, the Board decided that the offer of Allied, in the light of its sound business and financial stability, was in the best interests of the City and awarded it the contract. The award was later confirmed by the Board of Estimates. Although it obviously did not feel that way until after the contract was awarded to Allied, Jerry contended below and contends here that the provisions of Sections 37 and 38 of the Charter and Public Local Laws of Baltimore City (Flack) 1949, required that the Park Board