Mayor of Baltimore v. Keyser

Robinson, J., delivered the opinion of the Court. This is a bill to restrain the defendant officials from entering into a contract for lighting certain streets and public buildings in Baltimore City, with electric lights; and to restrain the city authorities from paying any money under said contract. It is filed by tax-payers of the city in their own behalf, and in behalf of all other tax-payers who may see fit to come in as parties. The injunction is asked on the ground that the defendants have no lawful power to make the contract in question, and that the contract, if made, will impose upon the complainants an increased burden of taxation.

Now, if this he so, — if the contract is one which the defendants have no authority to make, and the contract, if made, will increase the burden of taxation, — then the injunction was properly granted. Since the decision in Mayor and City Council of Baltimore vs. Gill, et al., 31 Md., 395 , this can no longer, he considered an open question. Whilst freely recognizing the general principle, that public wrongs are not to be redressed at the suit of individuals who have ¹⁰⁹ no other interest in the matter, than the rest of the public, the Court in that case held, that where the City authorities undertake to make a contract without the lawful power to make it, and the contract, if made, will increase the burden of taxation, tax-payers constitute a special class, having a special interest in the subject-matter distinct from that of the general public. In all such cases an injunction is, upon obvious principles, the most convenient and appropriate remedy.

And in the still later case of St. Mary’s Industrial School for Boys vs. Brown, et al., 45 Md., 310, 326 , an injunction was held to be the proper remedy, whenever it appears that municipal corporations and their officers are “acting ultra vires, or are assuming or exercising a power over the property of the citizen, or over corporate property or funds, which the law does not confer upon them, and where such unauthorized acts may affect injuriously the rights and property of the parties complaining.” The authority of these cases is in no manner weakened, nor is the principle upon which they were decided in any manner questioned, in the subsequent cases of Mayor, &c. of Baltimore vs. Weatherby, 52 Md., 442 , and Kelly, Piet & Co. vs. Mayor, &c. of Baltimore, 53 Md., 134 . There was no ordinance in Weatherby’s Case, say the Court, “requiring the Board of School Commissioners to advertise for sealed proposals for furnishing supplies or heating apparatus for school houses.” The sxibjectmatter was one entirely within the power and control of the Mayor and City Council, and there was no ground, therefore, for the interference of a Court of equity. And in Kelly, Piet & Co., the whole controversy in the opinion of the Court was one “between rival tradesmen for the custom of the Mayor and City Council, in supplying the departments with stationery and printed matter,' ’ in regard to which the public had no concern. ¹¹⁰ The real question then, in this case, is whether the defendants had the power to award the contract for lighting certain streets and public buildings to the Brush Electric Company; this being the contract out of which this controversy has arisen. And this depends upon the construction of the ordinance of the Mayor and City Council passed the 29th of May, under which the authority of the defendants /to make the contract is derived, and by which the terms and conditions on which the authority is to be exercised, are plainly prescribed.

By section 1 of this ordinance, the defendants were authorized to contract with the lowest responsible bidder for lighting certain streets and public buildings with electric lights. Section 2 provides they shall advertise in the daily newspapers for proposals, and that the proposals filed shall he opened, and the contract shall be awarded to the lowest responsible bidder at 12 o'clock, June 1st. Section 3 requires that each proposal shall be accompanied by a cash deposit or certified check of $5000. This is the ordinance under which the authority of the Mayor and the Comptroller and the Superintendent of Lamps to make the contract in question is derived, and these are the terms and conditions by which the exercise of this authority is to be governed.

Now, it can hardly be necessary to say that, where a special power is thus conferred upon officers of a municipal corporation to make a contract, and the terms and conditions upon which the authority is to be exercised are prescribed, there must be at least a substantial compliance with such terms and conditions, or the contract will be invalid. Now, in authorizing the defendants to make a contract for lighting certain streets and public buildings, the ordinance required in the first place, that they should advertise for proposals; and then it required that they ¹¹¹ should open the proposals filed under the advertisement; and then it required that they should award the contract to the lowest responsible bidder. The object, the jfiain object, of these provisions, was to prevent favoritism in awarding the contract, and to secure to the people of Baltimore City the advantages and benefits to be derived from competitive bidding. The terms and conditions thus prescribed by the ordinance are conditions precedent, the compliance with which by the defendants, was obviously essential to the exercise of the power conferred.

So the question, after all, comes to this: Was the contract in question made in the mode and manner, and upon the conditions prescribed by the ordinance ? And as this is an application for a preliminary injunction, the question is one to be determined upon the bill •and answer. What, then, are the averments in the bill on which the equity of the complainants rest? After setting out the ordinance, they allege that advertisements for proposals, signed by the Superintendent of Lamps, were published in three daily newspapers, the said proposals to be filed at his 'office up to 12 o’clock noon, June 1st, and they further allege and charge, that they are informed and believe, and do aver, that a certain sealed proposal or proposals were filed at the office of the Superintendent of Lamps before 12 o’clock noon, June 1st, accompanied by a duly certified check for $5000, and that the said Superintendent appeared at the Mayor’s Office at six minutes past 12 o’clock, June 1st, and presented said projDOsal or proposals to the Mayor and Comptroller, and that they refused to open and consider the same.

That the Mayor and Comptroller at 12 o’clock, June 1st, without waiting for the Superintendent of Lamps, or the production of any proposals filed with him, or making any inquiry as to whether any proposals had in fact been filed at his office, proceeded to open a proposal filed by the Brush Electric ¹¹² Company with the Mayor, and not filed with the Superintendent of Lamps as required by the advertisement, and to award the contract for electric lighting to said company. Eor reasons which do not appear, the Mayor and Comptroller and Superintendent of Lamps, have not deemed it necessary to answer the bill; and the only answer filed, is one filed by the Brush Electric Company. After denying the power of the defendant officials to designate the office