Packard v. Hayes

Jones, J., delivered the opinion of the Court. This case arose out of the exercise by the Mayor and City Council of Baltimore of the powers conferred upon the corporation by the 14th section of the charter (Act of 1898 chapter 123), which provides that,“ in contracting for any public work, or the purchase of any supplies or materials involving an expenditure of five hundred dollars or more for the city or by any of the city departments, sub-departments or municipal officers not embraced in a department, or special commissions or boards, unless otherwise provided for in this Article, proposals for the same shall be advertised for, in two or more daily newspapers published in Baltimore City, for not less than ten nor more than twenty days, and the contract for doing said work or furnishing said supplies or materials, shall be awarded by the board provided for in the next section of this article, and in the mode and manner as therein prescribed.”' The next section (15) provides that “ all bids made to the Mayor and City Council of Baltimore for supplies or work for any purpose whatever, unless otherwise provided * * * shall be opened by a board or a majority of them consisting of the Mayor and certain other designated officials of the city government, that this Board shall “ award the con ²⁴² tract'to the lowest responsible bidder”; that the successful bidder ‘ ‘ shall promptly execute a formal contract to be approved as to its form,- terms and conditions by the City Solid-tor ” and “ shall also execute and deliver to the Mayor a good and sufficient bond to be approved by the Mayor in double the amount of the contract price ”; that “ to all such bids there shall be attached a certified check of the bidder, and the bidder who has the contract awarded to him, and who fails to promptly and properly execute the required contract and bond shall forfeit said' check ”; and then prescribes certain conditions that are to attach to the giving of.the check, by the successful bidder, the amount of the check, and that the checks of the unsuccessful bidders shall be returned to them after- the awarding of the contract. In pursuance of the provisions of the 14th section of the city charter, which has been recited, the Commissioner of Street Cleaning, the head of a sub-department of Public Safety advertised as follows: “ Sealed proposals will be received by the Board of Awards until 12 o’clock noon on the 14th day of November, 1900, for the collection and disposal of garbage, dead animals, ashes and miscellaneous refuse in the City of Baltimore, Maryland. Specifications and proposal blanks can be obtained from the office of the Commissioner of Street Cleaning.

All bids for the collection of garbage and dead -animals must be accompanied by a certified check for $10,000, payable to the Mayor and City Council of Baltimore. All bids for the collection and disposal of ashes and miscellaneous refuse must be accompanied by a certified check for $i,ooo, made payable to the Mayor and City Council of Baltimore. The Board of Awards reserves the right to reject any and all bids. Bids must be inclosed in sealed envelopes addressed, ‘ Proposals for the collection and disposal of garbage and dead animals ’ and ‘ proposals for the collection and disposal of ashes and miscellaneous refuse’ and directed to George N. Numsen, City Register.” This advertisement was made in pursuance of a purpose on ²⁴³ the part of the Commissioner of Street Cleaning to substitute the contract system for the system which had prevailed in the City of Baltimore for the collection, removal and disposal of garbage, dead animals, ashes and miscellaneous refuse.

The specifications, to which reference was made in the advertisement set out, contained the provisions that “ each bidder must submit with his bid the scheme of garbage disposal which he proposes to establish, marked so as to correspond to the proposal which it is intended to accompany, and including such plan, specifications and other information as may be necessary to enable the said commissioner to determine the feasibility of it. Each such bidder must be able to insure the completion of the plant as proposed by him, in order that it may be ready for operation by June ist, 1901. The scheme of disposal must be signed by the bidder or bidders, and such signature must correspond to that affixed to the proposal.” They then made full and particular regulations for the collection and removal of garbage, refuse, &c., but contained nothing further in reference to the scheme or plant to be put in operation for the disposal or reduction thereof more specific than that “ the contractor must establish and maintain without cost to the city of Baltimore, beyond price stated in his proposal, such scheme or schemes, with all such wharves, boats, cars, vehicles, buildings, furnaces, boilers, drivers, presses and other devices and apparatus as may be necessary to enable him or them to perform the work specified in his or their contract” and that “the capacity of any plant or scheme established by the contractor must be sufficient to allow any necessary repairs to be made without interfering with the work of disposal.” Provision was made in the specifications for six different proposals, ist, to collect and dispose of all garbage, dead animals and market refuse in the city of Baltimore * * for five years from June ist, 1901 ; 2nd, to do the same for ten years from same date; 3rd, “to collect and dispose of all ashes and miscellaneous refuse in the city of Baltimore * * for five years from June ist, 1901 ; 4th, to do the same for ten years from same date; 5th,” to collect and dispose of all ²⁴⁴ garbage, dead animals, market refuse, ashes and miscellaneous refuse in the city of Baltimore * * for five years ; 6th, to do the same for ten years. Bids were made as invited by the foregoing advertisement to the number of five as alleged by the appellant; and to the number of six as alleged by the appellees.

As to which is correct in this particular is not material to the inquiry here. These bids were not opened on the 14th of November, 1900, the day indicated in the advertisement for proposals for the bids to be in ; but further time was granted to the 21st of November upon the request of parties desiring to bid who represented that they were unable to procure copies of the specifications in time to enable them to prepare a bid by the time required in the advertisement. On the 21st of November, 1900, the bids were opened and it was found that in point of fact the lowest bid was that of Michael T. Horner who did not accompany his bid with a proposal for any sanitary scheme for disposal and reduction of garbage, &c., but proposed to remove and dispose of it by depositing it and using it as a fertilizer on a farm belonging to him about eight miles from the city of Baltimore and upon neighboring farms equally distant ; or “ to reduce the said garbage by such methods of reduction, as is in accordance with most approved of practically successful scheme of reduction, and which shall be approved by the Commissioner of Street Cleaning of the city of Baltimore.” This bid seems not to have been considered. The record does not specifically state why.

But the bids when they were opened were referred by the Board of Awards to the Commissioner of Street Cleaning for tabulation and report thereon, and the commissioner in his report states that the author of this bid “did not comply with the specifications in that he did not present any sanitary disposal scheme whatever as required by the specifications.” Other than Horner’s bid, the lowest bid was one by the appellee, Samuel A. Rice, whose proposal was to collect and remove the garbage mentioned in specifications, “to a suitable ²⁴⁵ place in or out of the city of Baltimore, and there reduce it by the method or process now in use for reducing garbage, at Syracuse, New York, or with such modifications of that method or process as shall from time to time, be approved by the Commissioner of Street Cleaning, or he will reduce the said garbage by the use of such other method or process of reduction as shall be mutually agreed upon by the contractor and the Commissioner of Street Cleaning.” No plans of the system proposed to be used by this bidder were filed with the proposal. No bid was accepted on the 21st of November and three days later, on the 24th of November, igoo, the appellee, Rice, sent to the Commissioner of Street Cleaning a letter addressed to him and the Board of Awards jointly, accompanied with specifications as called for in the advertisement for proposals as respected the collecting and removing of garbage, &c., for the purpose of making clerical corrections, as he explained, in the specifications which he had before handed in, and with these sent also plans and specifications of a system for the reduction of garbage, not of the Syracuse system which he had already proposed to use, but of the system in use in Detroit. The full terms of other bids do not appear in the record, but this is not material. It is sufficient to say that it appears that each one proposed a different system for the reduction and disposal of garbage, except that one was a proposal to use the Syracuse system, or another system named in the bid.

The foregoing appear in the record as undisputed facts, and upon this state of facts the contract for the removal and disposal of garbage was awarded to the appellee, Samuel A. Rice, according to the 6th proposal named in the specifications in the office of the Commissioner of Street Cleaning. Whereupon the plaintiff filed the bill of complaint which inaugurated this suit, on his own behalf as a taxpayer and on behalf of other taxpayers, praying for an injunction to restrain the carrying out of the contract upon the ground that the requirements of the charter, as expressed in the provisions therein which have been herein set out, were not ob ²⁴⁶ served in awarding the contract; and that the same was not awarded according to competitive bidding as therein contemplated. The appellees answered the bill and the case was heard below upon bill and answer by agreement of the parties. It was further agreed that the exhibits appearing in the record as filed by the plaintiff should be considered as having been filed with the bill “and as if established by proof.” It is from the bill, answers and exhibits that the facts which have been recited, and which are all that we need to be concerned with, are made to appear.

This is not a case in which the Court has to deal with any question of fraud. It is simply a question of power possessed by the municipality concerned, as to the making of contracts of the character of the one here drawn in question. Now what is this power? It is defined in the two sections of the charter of the city of Baltimore, which have been set out.

When “contracting for any public work or the purchase of any supplies or materials * * * proposals for the same shall be advertised for” by the city or any of its departments,” and the contract for doing the said work or furnishing said supplies or materials, shall be awarded “by the Board of Awards as provided in section 15, a.nd in the mode and manner as therein prescribed." Here the Board of Awards in the action it is to take is expressly limited'to the exercise of the power conferred upon it in section 15. In this section there is but a single power conferred upon it which is to open the bids and “award the contract to the lowest responsible bidder. ” ' It of course, must exercise a discretion as to the responsibility of the bidder. Beyond this the section will be searched in vain for any other or broader power than to declare the lowest bidder and award the contract to him. This board is not given any power to make comparisons as to, nor to determine anything respecting materials offered or work proposed or the means of its execution; nor is there any authority vested in any other agency of the municipality to do this in connection with awarding contracts under the provisions of the two sections of the city charter in question ²⁴⁷ after proposals have been made in response to advertisement for them for purposes named in these sections.

There is no judgment authorized to be exercised in any way upon what is' offered or proposed whether in the way of materials or of work after proposals made. The one single thing to be done is that the board, provided for in section 15, shall open the. bids and declare who has offered to furnish the materials or do the work, as the case may be, for the lowest price, subject only to seeing that the bidder is responsible. Necessarily then all the essentials that the municipality designs that the contract proposed to be made shall contain, is to be determined before proposals are invited and are to be placed before the bidder as the basis of his bid. Otherwise there would be no standard by which bidding could be made with the definite-,