Konig v. Mayor and City Council of Baltimore

• Decision Date: 26 April 1916
• Docket Number: No. 67.,67.
• Citation: 128 Md. 465,97 A. 837
• Parties: KONIG v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.
• Court: Maryland Court of Appeals

97 A. 837

128 Md. 465

KONIG

v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.

No. 67.

Court of Appeals of Maryland.

April 26, 1916.

Dissenting Opinion May 2, 1916.

Appeal from Circuit Court No. 2 of Baltimore City; James M. Ambler, Judge.

"To' be officially reported."

Suit for injunction by George W. Konig against the Mayor and City Council of Baltimore and others. Decree for defendants, and plaintiff appeals. Reversed and remanded for further proceedings in accordance with opinion.

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

Morris M. Townley, of Chicago, Ill., and Edgar Allan Poe, of Baltimore (Bartlett, Poe, Claggett & Bland, of Baltimore, on the brief), for appellant. S. S. Field, City Sol., of Baltimore, and Richard S. Culbreth, of Baltimore, for appellees.

BOYD, C. J. In Konig v. M. & C. C. of Baltimore, 126 Md. 606, 95 Atl. 478, we decided that the contract involved in this controversy was invalid because it was not made in accordance with the requirements of the charter. The board of awards advertised for bids for a "filter equipment," which the Legislature had duly authorized the mayor and city council of Baltimore to build. Seventeen items were named in the specifications, and the bidders were required to give the price of each item (the first being in the alternative for item 1-A and item 1-B). Paragraphs 10 and 11 of the specifications were as follows:

"Bids for Alternative Items.—(10) Bidders must submit bids on both of the alternative items, 1-A and 1-B. The board of awards reserves the right to accept either one of the alternative items in connection with the other items of this contract.

"Statement of Quantities.—(11) The following is a statement of the work required under this contract, and the items given below will be used as a basis in comparing the several bids, viz.: Item 1-A. For strainer system (alternative item). Item 1-B. For strainer system (alternative item). Item 2. For 32 filter rate controllers."

And then the several items from item 3 to item 17, inclusive, are given; all being set out in 126 Md. 609, 95 Atl. 479. Items 1-A and 1-B are more particularly referred to, but it is sufficient to say that item 1-A involved the use of a process called "negative head," and the water engineer of the city said that:

"Item 1-B was designed by him with the view of avoiding the 'negative head' process, that the cost of the two systems, aside from the cost 'of any patent license, would he practically the same,' except that item 1-B would involve the additional cost of putting on some pipes. It was also alleged in the bill and evidence was offered tending to show that the process called 'negative head' was a patented process, the patent for which belonged to the New York Continental Jewell Filtration Company, and that the Norwood Engineering Company and the Pittsburg Filter Manufacturing Company were licensed to use that process."

The bids for the work were as follows:

Item 1-A.

Item 1-B.

M. L. Bayard........

$323,071.75

$150,071.75

American Water Softener Co. ..........

156,832.85

156,832.85

Norwood Engineering Co. .............

222,854.38

223,752.38

Pittsburg Filter Mfg. Co. .............

238,591.00

239,591.00

The American Water Softener Company submitted with its bid a communication to the board of awards in which it stated that should the contract be awarded to it, and the letters patent referred to be sustained in the appeal taken by the city of Harrisburg in the case of New York Continental Jewell Filtration Co. v. That City (D. C.) 208 Fed. 10, and, should an injunction to restrain the city and them from constructing and equipping the Baltimore filters as per the plans and specifications be applied for and granted, "then the Alters shall be equipped and operated with the 'device of venting filter effluents,' as shown on the city's drawing No. 161-A-4, and at the price named in our bid for Horn 1-B, until the expiration of said letters patent, and at which time we shall remove the vent pipes, free of charge, if the city should desire us to do so."

The water engineer submitted his report and tabulation of bids to the board of awards, accompanied by a letter set out in full in the former opinion. He stated that for the reasons given the American Water Softener Company should be considered the lowest responsible bidder. The board of awards after hearing counsel for the other bidders awarded the contract to that company, "reserving the right of requiring the construction of the contract under the direction of the water engineer, in accordance with either item 1-A or item 1-B as may be directed." A contract was entered into on March 20, 1914, between the board of awards and the American Water Softener Company, reserving the right to require the work to be in accordance with either alternative, item 1-A or item 1-B. On April 8th, 1914, before the work was begun, the plaintiff, a taxpayer, filed a bill on his own behalf, "and on behalf of all other property owners and taxpayers of Baltimore city who may care to come into and avail themselves of this suit and proceeding," for an injunction against the city, the members of the board of awards, the water engineer, and the American Water Softener Company. An order was passed to show cause why the writ should not issue., a decree pro confesso was obtained against the contractor, the other defendants answered, evidence was taken, and on March 25, 1915, the court below passed the decree from which the former appeal was taken—whereby the bill of complaint was dismissed. We held "that the proposal of the American Water Softener Company was not submitted in accordance with the specifications, and that the contract awarded to that company, and entered into by it and the city, was not the contract or thing for which bids or proposals were invited by the advertisement, or for which there was competitive bidding," and declared the contract invalid. The case was remanded, and the plaintiff then made application for the injunction, pursuant to the mandate as he claimed. Testimony was taken before the court, and, after reciting his reasons, the learned judge below passed the decree from which this appeal was taken. It is dated the 17th day of July, 1915, and "adjudged, ordered, and decreed that the contract of March 20, 1914, between the mayor and city council of Baltimore and the American Water Softener Company be and it is hereby declared to be null and void, but that the prayer for an injunction be and the same is hereby denied and refused, without prejudice, however, to the right of the plaintiff to proceed further in this cause, or to have, seek, institute, or prosecute any other suit, action, proceeding, or remedy to which he may otherwise be entitled; and it is further ordered that the cost of this proceeding be paid by the defendants."

The appeal from that decree was duly heard by us, but the court of its own motion, owing to differences in the views of the judges who sat, ordered a reargument, which was heard by all of the members of the court. Although some of them have been unable to concur, the majority have determined that under the circumstances the proper disposition of the case is as hereinafter announced. It may be well to here say that it is not our purpose to change the conclusion reached by us in 126 Md., as was argued by the appellees could properly be done by reason of evidence offered after the case was remanded. That opinion concluded as follows:

"For the reasons stated, we think the plaintiff was entitled to have the contract annulled and the performance and execution thereof enjoined, and we must therefore reverse the decree of the court below and remand the cause. But, in view of the fact that the contract was partly executed at the time of the trial of the case in the court below, and the statement of counsel that it would probably be fully executed and completed before the case was decided by this court, the extent to which relief by injunction may be granted and the terms of the injunction, if any, that should be issued by the court below must depend upon the status of the parties to the contract with reference to the performance thereof when the cause reaches that court."

The lower court filed an opinion setting out the facts found by it from the evidence taken after the cause was remanded, and concluded it by saying:

"And, inasmuch as the highest court of this state, while declaring the contract in controversy to be utterly void, at the same time imposed upon this court the responsibility of determining 'the extent to which relief by injunction may be granted and the terms of the injunction, if any, that should be issued,' and this court is of opinion that the advantage to the plaintiff or any other taxpayer from an injunction prohibiting any further performance of the said contract, and therefore necessarily delaying the completion of the filtration plant at the very period of the year when it is most needed, would be inconsiderable in comparison with the loss and damage thereby occasioned to the 'parties to the contract,' and, above all else, in comparison with the risk of danger to the public health from any delay, however brief, at this season."

It then passed the decree quoted above.

Although it was not intended by us by what was said in the opinion in 126 Md. to leave to the discretion of the lower court the question whether any injunction should issue, if the contract was not completed, yet in justice to that court it must be said that, inasmuch as it reached the conclusions stated by it as to what had been done, and as to the importance to the health of the people of a speedy completion of the work, and as it had the understanding referred to above of the responsibility imposed on it by this court, it can well be understood why the learned judge hesitated to issue an injunction, especially as his refusal to do so was without prejudice to the...