City of Baltimore v. Keyser

• Decision Date: 18 March 1890
• Citation: 19 A. 706,72 Md. 106
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE ET AL. v. KEYSER ET AL.
• Court: Maryland Court of Appeals

19 A. 706

72 Md. 106

MAYOR AND CITY COUNCIL OF BALTIMORE ET AL. v. KEYSER ET AL.

Court of Appeals of Maryland

March 18, 1890

Appeal from circuit court of Baltimore city; J. UPSHUR DENNIS Judge.

Argued before ALVEY, C.J., and IRVING, MCSHERRY, FOWLER, and ROBINSON, JJ.

Barnard Carter, R. Stockett Mathews, and R. W Baldwin, for appellants.

Robert D. Morrison, Nicholas P. Bond, and Howard Munnikhuysen, for appellees.

ROBINSON J.

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 light, 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 be 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 Gill's Case, 31 Md. 395, this can no longer be considered an open question. While fully recognizing the general principle that public wrongs are not to be redressed at the suit of individuals who have 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 Industrial School v. Brown, 45 Md. 310, 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 of 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, etc., v. Weatherby, 52 Md. 442, and Kelly v. Mayor, etc., 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 subject-matter 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 v. Mayor, etc., 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, with regard to which the public had no concern.

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 May 29th, 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 light. Section 2 provides they shall advertise in the daily newspaper for proposals, and that the proposals filed shall be 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 $5,000. 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 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 plain 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 absolutely 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,...