Argued
March 7, 1895
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal, No. 340, Jan. T., 1895, by defendants, from decree of
C.P. Berks Co., Equity Docket, 1894, No. 607, awarding
injunction on bill in equity. Affirmed.
Bill in
equity to declare void proceedings in awarding a municipal
contract, and for an injunction to restrain the execution of
a contract.
The
facts appear by the opinion of ENDLICH, J., which was as
follows:
FINDINGS
OF FACTS.
"1.
The plaintiff, A. Lincoln Frame, is a citizen and taxpayer of
the city of Reading, and the owner of real estate in the said
city taxable for municipal purposes.
"2.
The city of Reading is a municipal corporation, having
accepted and being subject to the provisions of the act of
the legislature, entitled 'An act dividing the cities of
the state into three classes,' etc., approved May 23,
1874, being a city of the third class, and is also subject to
the provisions of the act of the legislature, entitled
'An act to provide for the incorporation and regulation
of cities of the third class,' approved May 23, 1889.
"3.
George H. Felix, Matthan Harbster, Frank A. Tyson and
Frederick P. Heller, four of the defendants, are
commissioners of the water department of the city of Reading,
which department is governed by the provisions of the act
March 21, 1865, P.L. 458, and the supplements thereto; the
former providing in sec. 4 that said commissioners shall have
power 'to purchase such materials as shall be requisite
for keeping said waterworks in good repair, but not for the
construction of new works, without the consent and direction
of councils;' and that 'no new work of construction .
. . shall be undertaken by said commissioners, without the
consent of councils being first had and obtained.'
"4.
In pursuance of an ordinance of the councils of the city of
Reading, of March 23, 1894, providing as follows:
"Section
1. Be it ordained, etc., that the sum of $35,000 be and the
same is hereby appropriated to the department of water for
the fiscal year of 1894, to purchase an additional pumping
engine for use at Maidencreek pumping station, and to make
such alterations to the present pumping station as shall be
necessary for the accommodation of said engine. . . .
"Section
2. That the board of water commissioners be and are hereby
authorized and directed immediately after the approval of
this ordinance, to advertise for proposals for said pumping
engine and alterations to building, and award contracts for
the same to such party or parties as they may deem proper for
the best interests of the city. . . .
"The
said commissioners of the water department, having resolved
to construct a new inlet at the Maidencreek pumping station
of the said city, prepared plans and specifications therefor,
and invited proposals for the said work, on the basis of the
said plans and specifications; and that in the said
specifications it was stipulated that the person to whom the
contract should be awarded should not employ any laborer,
artisan or mechanic upon the said work who was not a citizen
of the United States; and that said contractor should not pay
less for labor on the said work than $1.50 per day for every
person employed.
"5.
A number of proposals were made for the said work upon the
basis of the said specifications, and the said commissioners
of the water department, on the 18th day of December, A.D.
1894, awarded the contract for the said work to Howard E.
Ahrens, one of the defendants, who had made one of the
proposals on the basis of the said specifications, and,
unless restrained, will execute an agreement with the said
Howard E. Ahrens, for the performance of the said work in
accordance with the terms of the said plans and
specifications.
"Under
these findings of fact and as applicable to them I make the
following:
FINDINGS
OF LAW.
"[(a)
In the inviting, awarding and conclusion of contracts for new
work of construction under authority of the councils of the
city of Reading, the board of water commissioners is bound to
act in conformity with the provisions of the act of May 23,
1889, art. IV, sec. 6; and the authority given it by the
ordinance of March 23, 1894, respecting the construction or
alteration at the Maidencreek pumping station must be
understood as having been given and as exercisable by said
board subject to said provisions.]
"[(b)
The fixing by the board of water commissioners, in the
specifications for the work to be done at the Maidencreek
pumping station, of a minimum price to be paid for labor, and
the inviting of proposals and the awarding of the contract
upon the basis of such specifications, are a violation of the
statutory requirement in the act of May 23, 1889, art. IV,
sec. 6, that such work be awarded to the lowest responsible
bidder, and therefore void.]
"[(c)
The plaintiff, as a citizen, taxpayer and property owner in
the city of Reading, has a right to invoke the equity
jurisdiction of this court to set aside the action of the
board of water commissioners in the premises and to restrain
the execution of the proposed agreement between it and the
defendant Ahrens in pursuance of said action.]
"(d)
The plaintiff is entitled to a decree in accordance with the
first and second prayers of his bills with costs.
"The
reasons which seem to compel the decision I have just
indicated are (without regard to the order of the findings)
the following: --
"1.
The present bill falls clearly within the category of bills
quia timet, 'a well settled branch of equity
jurisdiction:' Wheeler v. Philadelphia, 77 Pa.
338, 348; Wells v. Bain, 75 Pa. 39; Baird v.
Rice, 63 Pa. 489; Page v. Allen, 58 Pa. 338.
Nor can the standing of a citizen and a taxpayer, when money
is to be raised by taxation or expended by the municipal
treasury, to proceed in equity to test the validity of the
proposed action claimed by him to be illegal, be questioned
at this day: Wheeler v. Philadelphia, supra; Sharpless v.
Mayor, 21 Pa. 147; Moers v. Reading, 21 Pa.
188; Mott v. R.R. Co., 30 Pa. 9; Page v. Allen,
supra; Mazet v. Pittsburg, 137 Pa. 548; the
recognized grounds of such standing being special injury to
his interests as a taxpayer and want of a common law remedy;
see Bispham Eq., sec. 424; 1 Spelling, Extraord. Relief,
secs. 614, 717; Mott v. R.R. Co., supra. It is therefore
unnecessary for him to show any injury likely to result to
him from the alleged illegal action, different in kind from
that common to all other citizens and taxpayers and
inferable, as a matter of law, from the illegality of the
proposed expenditure of the public money. The fact of a
threatened injury entitling him to a relief is necessarily
involved in the establishment of the illegality of the
intended municipal action. Hence I have deemed it needless to
make any special finding, as a finding of fact, that the
contract here in question, if executed, will do irreparable
injury to plaintiff.
"2.
It was decided in Reading v. Shepp, 2 Distr. R. 137,
upon careful consideration of all the pertinent statutes,
that the special act of 1865, creating and governing the
water department of the city of Reading, is not repealed by
the provisions of the act of 1874, providing a system by
which cities of the third class may purchase the franchises,
etc., of existing water companies, nor by those of the act of
1889, empowering such cities having become the owners of
waterworks, to establish water departments; and that,
therefore, the water department of the city of Reading is
governed by the act of 1865 and its supplements, and not by
the general laws of 1874 and 1889. The question then arises,
whether in inviting proposals and awarding contracts, the
board is required to conform to the provisions of art. IV,
sec. 6, of the last named enactment, which is as follows:
"All
work and materials required by the city shall be furnished,
and the printing, advertising and all other kinds of work to
be done for the city, shall be performed under contract, to
be given to the lowest responsible bidder, under such
regulations as shall be prescribed by ordinance."
"It
was decided in Bork v. Buffalo, 127 N.Y. 64, that a
provision in the charter of the city of Buffalo, prohibiting
the same from entering into a contract for any work or
improvement (exceeding certain prices, and with certain
exceptions) 'until the assessment therefor has been
confirmed,' did not apply to the board of park
commissioners of said city, or to the contracts made by them
but that the provisions mentioned had reference to contracts
made by the regular officers of the municipal government, and
not those made by a separate department possessing
independent corporate powers. It appears from the opinion of
Mr. Justice VANN in that case that the park commission was
organized by a special statute passed 1869, subsequently to
the enactment of the charter of the city, forming no part of
it and in no way...
