Kelly v. City of Baltimore

• Decision Date: 12 February 1880
• Citation: Kelly v. City of Baltimore, 53 Md. 134 (Md. 1880)
• Parties: MICHAEL J. KELLY and John B. Piet, Trading as Kelly, Piet & Co. v. THE MAYOR AND CITY COUNCIL OF BALTIMORE and W. J. C. Dulany & Co.
• Court: Maryland Court of Appeals

53 Md. 134

MICHAEL J. KELLY and John B. Piet, Trading as Kelly, Piet & Co. v. THE MAYOR AND CITY COUNCIL OF BALTIMORE and W. J. C. Dulany & Co.

Court of Appeals of Maryland

February 12, 1880

Appeal from the Circuit Court of Baltimore City.

The case is stated in the opinion of the court.

The cause was argued before BARTOL, C.J., BOWIE, BRENT, MILLER and IRVING, JJ.

William J. O'Brien and Albert Ritchie for the appellants.

James L. McLane, for the appellee, the Mayor and City Council of Baltimore.

Bradley T. Johnson, for the other appellees.

Bowie J., delivered the opinion of the court.

The object of the appellants' bill in this case, is to vacate a contract, alleged to have been fraudulently obtained by the appellees, Dulany & Co., from their co-appellees, the Mayor and City Council of Baltimore, and to enjoin the latter, its agents, officers and servants from executing said contract and doing anything in furtherance thereof.

The bill is filed by the complainants in their own right as copartners, and actually engaged in the business of printers and stationers, and as tax-payers of said city largely interested in the faithful and economical administration of the affairs of said city.It is not filed in behalf of themselves and others who may come in and contribute to the expenses of the suit.They do not make their fellow-citizens parties to the proceeding.No one except the persons immediately interested in the contract, and professing to be aggrieved by the award, unites in the complaint.It is therefore strictly speaking, a private bill.

The material allegations of the appellants' bill are substantially as follows:

They allege that the Mayor and City Council of Baltimore, (through the City Librarian,) advertised on the 10th of October, 1878, for proposals to supply the several departments of the City Government, with stationery and printed matter, from January 1st, 1879, to December 31st, 1879.

Which advertisement contained the following clauses:

"Specimens of what will be required, and quantity needed, can be obtained on application."

"The ordinance provides: 'no proposal shall be received from any, but those actually engaged in the printing and stationery business in Baltimore.'The right to reject any bid that shall not be deemed for the best interest of the city is hereby reserved."

In response to this advertisement, proposals were made by the appellants, based on specifications, furnished by the City Librarian, for printing and stationery; and the appellees, W. J. C. Dulany & Co., and one, J. Wesley Smith, also made proposals, all of which were laid before the Mayor, who together with the Comptroller and Register opened the same, that when they were opened, they were examined by the City Librarian, and the contract was awarded to W. J. C. Dulany & Co. as the lowest bidders for said work, when in fact said appellants were the lowest bidders.

They charge that the specifications on which the proposals were made, were arranged by the Librarian and the appellees, Dulany & Co., to enable them to commit a fraud upon the Mayor and City Council, and in pursuance of a conspiracy, to defraud the Mayor and City Council, the tax-payers of said city, and the complainants, etc.

It is alleged that the proposals of Dulany & Co. were fraudulently altered by the Librarian, after they had been accepted, and were raised in all $600 for the benefit of Dulany & Co.

The appellants charge that their proposal for printing, was lower than the award made to Dulany & Co., and that being the lowest bidders, and in all other respects unexceptionable, they were and now are entitled to the contract, and that the award to the appelleesDulany & Co. was fraudulent and to the great injury of the tax-payers of the city.

They further charge that the contract for printing should not have been awarded to Dulany & Co., because they were not at that time, nor at any time previously, actually engaged in the printing and stationery business, which fact, was well known to the Mayor, Comptroller, Register and Librarian, before said proposals were received and accepted, and they"willfully, knowingly and contrarily," against the provisions of the Ordinance of the City, and in fraud of the rights of the complainants, awarded the contract for printing and stationery to the said Dulany & Co.

The complainants charge that OrdinanceNo. 74, 1876, invests the City Officers with power to contract for printing and stationery, separately, if in their opinion they believe it best for the interests of the city, and in this view of the law the complainants were entitled to the contract for printing, but the City Officers denying they possessed such power to contract for printing and stationery separately, have excluded others from bidding.

After various other averments as to the power and duty of the Mayor, etc., to contract for printing and stationery separately, and imputations of fraud in refusing to entertain separate proposals, the appellants charge that all such acts are contrary to equity, injurious to their rights and in fraud of the taxpayers of said city, and that said award and contract with Dulany & Co. are illegal and void; in consideration whereof, and to the end that the defendants may make answer, and that the award may be declared void and the Mayor and City Council of Baltimore, may be enjoined from executing said contract, they pray for an injunction, and subpoenas and general relief.

Answers were filed by the respondents under oath, denying all the charges of fraud and malfeasance or misfeasance alleged against them and all combinations and conspiracy.Simultaneously, with the filing of the answers, an order was passed on application of the complainants, that the parties have leave to take testimony, under which various witnesses were examined and their depositions returned."The cause coming on to be heard, and being submitted, etc., on the 30th of September, 1879, it was by the Circuit Court of Baltimore City, decreed that the injunction prayed for in the bill be refused and the bill dismissed with costs."

From which decree this appeal is taken.

The testimony is too voluminous to be condensed.It is mainly directed to the mode in which the proposals were submitted and manipulated by the Librarian, the occupation of the Dulanys as stationers and printers, and the knowledge of that fact by the Mayor and his colleagues.Suffice it to say, no fraudulent conduct is proved against the defendants, and the imputation as against the Mayor and his colleagues, is expressly withdrawn in argument before us.

Applications for an injunction are addressed to the conscience and discretion of the court, and the facts submitted should justify its exercise, beyond reasonable doubt.

Public wrongs, although involving private injuries, are not to be made the grounds of personal suits at law, or in equity, unless the complainant has sustained special damage, and in many instances, the private injury is merged in the public.

In exceptional cases, where great principles or large public interests are involved, citizens or corporators may sue in...