Lucas v. American-Hawaiian Eng'g & Constr. Co.

• Decision Date: 05 August 1904
• Citation: 16 Haw. 80
• Parties: JOHN LUCAS v. THE AMERICAN-HAWAIIAN ENGINEERING AND CONSTRUCTION COMPANY, LIMITED, C. S. HOLLOWAY, SUPERINTENDENT OF PUBLIC WORKS OF THE TERRITORY OF HAWAII, AND J. H. FISHER, AUDITOR OF THE TERRITORY OF HAWAII.
• Court: Hawaii Supreme Court

16 Haw. 80

JOHN LUCAS

v.THE AMERICAN-HAWAIIAN ENGINEERING AND CONSTRUCTION COMPANY, LIMITED, C. S. HOLLOWAY, SUPERINTENDENT OF PUBLIC WORKS OF THE TERRITORY OF HAWAII, AND J. H. FISHER, AUDITOR OF THE TERRITORY OF HAWAII.

Supreme Court of the Territory of Hawai‘i.

Submitted July 14, 1904.

Decided August 5, 1904.

APPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT.

Syllabus by the Court

Allegations in an answer setting up that the bill was brought to gratify private vengeance and not in the public interest, and that plaintiff had threatened the institution of this suit unless certain officers of defendant corporation should use their influence to cause the dismissal of another suit pending against the plaintiff, no unfair advantage having been shown to have been gained in consequence of the same, held properly stricken out on exceptions to answer.

The motives of a taxpayer in brnging such a suit held not to be the subject of inqury.

A tax payer may maintain a bill for an injunction against a public officer to restrain him from carrying out an illegal contract.

A delay of two months after the award of a contract before bringing suit held not laches.

A contract for the construction of a wharf and other work, based on specifications which reserved to the Superintendent of Public Works the right to use in the new work any piles from the old work considered suitable, held to constitute such an element of uncertainty as to render intelligent bidding and competition impossible, and the contract itself void.

Kinney, McClanahan & Cooper for plaintiff.

M. F. Prosser, Assistant Attorney General, for defendants Holloway and Fisher.

Castle & Withington for defendant American-Hawaiian Engineering & Construction Co., Limited.

FREAR, C.J., HARTWELL AND HATCH, JJ.

OPINION OF THE COURT BY HATCH, J.

This is an appeal in equity from the First Circuit. The decree appealed from perpetually enjoins and restrains the defendant, the American-Hawaiian Engineering and Construction Company, Limited, from receiving any money under a contract for the construction of certain public work made between it, said defendant, and the defendant C. S. Holloway, Superintendent of Public Works of the Territory of Hawaii, as alleged in the bill; and enjoins said Superintendent of Public Works from signing or approving any vouchers for work done or materials furnished under said contract; and enjoins said defendant J. H. Fisher, Auditor of the Territory from issuing warrants or payments for work or labor done, or materials furnished under said contract. The contract was made on the 5th of March, 1904. It is therein provided that the American-Hawaiian Engineering and Construction Company, Limited, should “furnish all labor, material and removing existing structure and construct Brewer's Wharf and Shed, using new piles throughout the wharf and laying 1 1/2? Bitumen in 4? of Concrete Foundation in accordance with plans No. 1290 on file in the Superintendent of Public Works office and specifications hereto annexed and forming a part hereof, and to complete the same on or before the 10th day of August, 1904,” and the said defendant C. S. Holloway, as such Superintendent of Public Works, therein and thereby agreed to pay to the said defendant, American-Hawaiian Engineering and Construction Company, Limited, ‘the sum of Thirty Eight Thousand Seven Hundred (38700.00) (for Wharf and Shed and 28c. per sq. ft. for Bitumen and Concrete Foundation) Dollars in lawful money; payments to be made as follows: 75% of value of material used and work done each month and the balance when the whole work shall have been completed in accordance with the provisions of this agreement, and shall have been accepted by the Superintendent of Public Works.”

This contract was awarded in pursuance of a call for tenders made by the defendant C. S. Holloway, Superintendent of Public Works, on the 20th day of January, 1904, which was duly published in certain newspapers in Honolulu and is in the words and figures following, to wit:

“SEALED TENDERS.

“Sealed Tenders will be received until 12 M., of Saturday, February 20th, 1904, by the Superintendent of Public Works for furnishing all materials and remove existing structure and construct Brewer's Wharf and Shed.

“Plans and Specifications on file in the office of Engineer Department of Public Works. The Superintendent reserves the right to reject any and all bids. Proposals to be endorsed on envelope

“‘Proposal for Constructing Brewer's Wharf and Shed.’

“C. S. Holloway,

“Superintendent of Public Works.

“January 20, 1904.”

The specifications referred to in the notice published, among other things, contained the following provisions:—

“WORK:

“The work to be done under these specifications consists in furnishing all material and labor. To remove existing structures and construct wharf and shed.

“REMOVAL OF OLD STRUCTURE:

“The contractor must remove old shed and wharf. The material to be the property of the contractor, except piles, mooring rings, cannon and mooring bits.

“The old material must be removed from the locality of the work as fast as it is removed, the locality of the work will not be permitted to be littered with the old material.

“The piles shall be carefully pulled and scraped clean of any marine growth and piled on bulkhead at end of slip between Brewer's and Nuuanu Wharves.

“The Department reserves the right to use, in the new structure, any of the old piles that may be suitable. The contractor must patch the coppering where necessary and extend same, if necessary. In pulling piles, care must be taken not to damage copper. Any damage must be repaired by the contractor. Piles must be delivered to the Department of Public Works in good condition. ***

“ALTERNATE BITUMEN PROPOSITION:

“The entire area of wharf and space under shed to be bitumenized with 2? of bitumen on top of wharf sheeting and concrete foundation as hereinbefore specified. On top of the sheeting shall be laid 1/2? x 2? strips spaced 2 feet apart. The bitumen used on surface of wharf must be hard bitumen disintegrated in closed kettles. The bitumen must be laid true to line and grade, and places that hold water must be removed and properly constructed. The surface of bitumen on wharf to be well brushed with cement grout.”

Subsequently, on the 2nd day of February, 1904, said defendant, Holloway, as such Superintendent of Public Works, caused to be sent to certain prospective bidders for the work described in said advertisements, written notice in the words and figures following, to wit:

“Referring to the tenders for the construction of the Brewer's wharf and shed, would ask that you put in a bid for the bitumen floor as an extra, rather than making a total figure for the wharf and bitumen.

“Yours truly,

“J. H. Howland,

“Asst. Supt. of Public Works.”

And on the 16th day of February, 1904, he caused a written notice to be mailed to certain prospective bidders for said work, which notice is substantially in the words and figures, following, to wit:

“Honolulu, T. of H., February 16, 1904.

“Messrs. ...........................:

“Inasmuch as the specifications for Brewer's wharf are rather indefinite as regards the number of piles which will be available from the old structure, would ask that you will figure on new piles, stating allowance per pile for those furnished by the Government. By adding this item to the specifications each bidder will be able to figure exactly the same amount of work.

“Very truly yours,

“J. H. Howland,

“Asst. Supt. of Public Works.”

The bid of the American-Hawaiian Engineering and Construction Company was as follows:

“American-Hawaiian Engineering and Construction Company,

“Limited.

“508-509-510 Stangenwald Building,

“Honolulu, T. H., February 20, 1904.

“C. S. Holloway, Esq.,

“Supt. of Public Works.

“Dear Sir:—

“We herewith propose to furnish all material and perform all the work for the construction of Brewer's Wharf and Shed, in accordance with the plans and specifications, for the sum of Thirty Eight Thousand Seven Hundred Dollars ($38,700.).

“We will lay the bitumen floor for the following sum additional:

+-----------------------------------------------------------------------------+
                ¦“For 2? bitumen covering only, per sq. ft.                              ¦$.17¦
                +------------------------------------------------------------------------+----¦
                ¦“For 2? bitumen covering with 4? concrete foundation (including grading ¦.30 ¦
                ¦and rolling) per sq. ft.                                                ¦    ¦
                +------------------------------------------------------------------------+----¦
                ¦“For 1 1/2? bitumen covering with 4? concrete foundation (including     ¦.28 ¦
                ¦grading and rolling) per sq. ft.                                        ¦    ¦
                +-----------------------------------------------------------------------------+
                

“We herewith enclose certified check for Two Thousand Dollars ($2,000.) to your order.

“Yours truly,

“American-Hawaiian Eng. & Con. Co., Ltd.

“Chas. H. Gilman,

“President.”

On the 20th of February, 1904, at 12 noon, pursuant to the said advertisement, the said defendant, Holloway, as such Superintendent of Public Works, proceeded to open the sealed proposals received by him for doing said work and awarded the contract to said defendant, the American-Hawaiian Engineering and Construction Company.

On the 3rd day of May, 1904, the plaintiff, a citizen and taxpayer of the Territory brought this suit for an injunction against the defendants as above stated.

The plaintiff excepted to certain paragraphs of the answer of the American-Hawaiian Engineering and Construction Company on the ground of scandal and impertinence. The exception was allowed and the paragraphs complained of stricken out. The portion of the answers stricken out averred that the suit was brought, and the process of the court used, for the purpose of gratifying private vengeance, and not to vindicate public interest; and that plaintiff had threatened to make trouble for...