Packard v. Hayes

• Decision Date: 15 January 1902
• Citation: 51 A. 32,94 Md. 233
• Parties: PACKARD v. HAYES et al.
• Court: Maryland Court of Appeals

51 A. 32

94 Md. 233

PACKARD v. HAYES et al.

Court of Appeals of Maryland

January 15, 1902

Appeal from circuit court of Baltimore city; Albert Ritchie, Judge.

Injunction by Roscoe M. Packard against Thomas G. Hayes and others to restrain the carrying out of a municipal contract. From a decree in favor of the defendants, the plaintiff appeals. Reversed.

Argued before McSHERRY, C.J., and FOWLER, BOYD, SCHMUCKER, and JONES, JJ.

Findlay & Mackenzie and M.N. Packard, for appellant.

Wm Pinkney Whyte, Bernard Carter, Thos. R. Clendinen, and Wm. S Bryan, Jr., for appellees.

JONES J.

This case arose out of the exercise by the mayor and city council of Baltimore of the powers conferred upon the corporation by the fourteenth section of the charter (Acts 1898, c. 123) which provides that: "In contracting for any public work, or the purchase of any supplies or materials involving an expenditure of five hundred dollars or more for the city or by any of the city departments, subdepartments or municipal officers not embraced in a department, or special commissions or boards, unless otherwise provided for in this article, proposals for the same shall be advertised for, in two or more daily newspapers published in Baltimore city, for not less than ten nor more than twenty days, and the contract for doing said work or furnishing said supplies or materials shall be awarded by the board provided for in the next section of this article, and in the mode and manner as therein prescribed." The next section (15) provides that "all bids made to the mayor and city council of Baltimore for supplies or work for any purpose whatever unless otherwise provided, *** shall be opened by a board or a majority of them, consisting of the mayor" and certain other designated officials of the city government; that this board shall "award the contract to the lowest responsible bidder"; that the successful bidder "shall promptly execute a formal contract to be approved as to its form, terms and conditions by the city solicitor," and "shall also execute and deliver to the mayor a good and sufficient bond to be approved by the mayor in double the amount of the contract price"; that "to all such bids there shall be attached a certified check of the bidder, and the bidder who has the contract awarded to him, and who fails to promptly and properly execute the required contract and bond shall forfeit said check"; and then prescribes certain conditions that are to attach to the giving of the check by the successful bidder, the amount of the check, and that the checks of the unsuccessful bidders shall be returned to them after the awarding of the contract. In pursuance of the provisions of the fourteenth section of the city charter, which has been recited, the commissioner of street cleaning, the head of a subdepartment of public safety, advertised as follows: "Sealed proposals will be received by the board of awards until 12 o'clock noon on the 14th day of November, 1900, for the collection and disposal of garbage, dead animals, ashes, and miscellaneous refuse in the city of Baltimore, Maryland. Specifications and proposal blanks can be obtained from the office of the commissioner of street cleaning. All bids for the collection of garbage and dead animals must be accompanied by a certified check for $10,000, payable to the mayor and city council of Baltimore. All bids for the collection and disposal of ashes and miscellaneous refuse must be accompanied by a certified check for $1,000, made payable to the mayor and city council of Baltimore. The board of awards reserves the right to reject any and all bids. Bids must be inclosed in sealed envelopes, addressed 'Proposals for the collection and disposal of garbage and dead animals' and 'Proposals for the collection and disposal of ashes and miscellaneous refuse,' and directed to George N. Numsen, City Register." This advertisement was made in pursuance of a purpose on the part of the commissioner of street cleaning to substitute the contract system for the system which had prevailed in the city of Baltimore for the collection, removal, and disposal of garbage, dead animals, ashes, and miscellaneous refuse. The specifications, to which reference was made in the advertisement set out, contained the provisions that: "Each bidder must submit with his bid the scheme of garbage disposal which he proposes to establish, marked so as to correspond to the proposal which it is intended to accompany, and including such plan, specifications, and other information as may be necessary to enable the said commissioner to determine the feasibility of it. Each such bidder must be able to insure the completion of the plant as proposed by him, in order that it may be ready for operation by June 1, 1901. The scheme of disposal must be signed by the bidder or bidders, and such signature must correspond to that affixed to the proposal." They then made full and particular regulations for the collection and removal of garbage, refuse, etc., but contained nothing further in reference to the scheme or plant to be put in operation for the disposal or reduction thereof more specific than that "the contractor must establish and maintain, without cost to the city of Baltimore beyond price stated in his proposal, such scheme or schemes, with all such wharves, boats, cars, vehicles, buildings, furnaces, boilers, drivers, presses, and other devices and apparatus as may be necessary to enable him or them to perform the work specified in his or their contract," and that "the capacity of any plant or scheme established by the contractor must be sufficient to allow any necessary repairs to be made without interfering with the work of disposal." Provision was made in the specifications for six different proposals: "(1) To collect and dispose of all garbage, dead animals, and market refuse in the city of Baltimore *** for five years from June 1, 1901; (2) to do the same for ten years from same date; (3) to collect and dispose of all ashes, and miscellaneous refuse in the city of Baltimore *** for five years from June 1, 1901; (4) to do the same for ten years from same date; (5) to collect and dispose of all garbage, dead animals, market refuse, ashes, and miscellaneous refuse in the city of Baltimore *** for five years; (6) to do the same for ten years." Bids were made as invited by the foregoing advertisement to the number of five as alleged by the appellant, and to the number of six as alleged by the appellees. As to which is correct in this particular is not material to the inquiry here. These bids were not opened on the 14th of November, 1900, the day indicated in the advertisement for proposals for the bids to be in; but further time was granted to the 21st of November, upon the request of parties desiring to bid, who represented that they were unable to procure copies of the specifications in time to enable them to prepare a bid by the time required in the advertisement. On the 21st of November, 1900, the bids were opened, and it was found that in point of fact the lowest bid was that of Michael T. Horner, who did not accompany his bid with a proposal for any sanitary scheme for disposal and reduction of garbage, etc., but proposed to remove and dispose of it by depositing it and using it as a fertilizer on a farm belonging to him, about eight miles from the city of Baltimore, and upon neighboring farms equally distant, or "to reduce the said garbage by such methods of reduction as are in accordance with most approved or practically successful scheme of reduction, and which shall be approved by the commissioner of street cleaning of the city of Baltimore." This bid seems not to have been considered. The record does not specifically state why. But the bids, when they were opened, were referred by the board of awards to the commissioner of street cleaning for tabulation and report thereon; and the commissioner, in his report, states that the author of this bid "did not comply with the specifications, in that he did not present any sanitary disposal scheme whatever, as required by the specifications." Other than Horner's bid, the lowest bid was one by the appellee Samuel A. Rice, whose proposal was to collect and remove the garbage mentioned in specifications "to a suitable place in or out of the city of Baltimore, and there reduce it by the method or process now in use for reducing garbage at Syracuse, New York, or with such modifications of that method or process as shall from time to time be approved by the commissioner of street cleaning; or he will reduce the said garbage by the use of such other method or process of reduction as shall be mutually agreed upon by the contractor and the commissioner of street cleaning." No plans of the system proposed to be used by this bidder were filed with the proposal. No bid was accepted on the 21st of November, and three days later, on the 24th of November, 1900, the appellee Rice sent to the commissioner of street cleaning a letter addressed to him and the board of awards jointly, accompanied with specifications as called for in the advertisement for proposals as respected the collecting and removing of garbage, etc., for the purpose of making clerical corrections, as he explained, in the specifications which he had before handed in; and with these sent also plans and specifications of a system for the reduction of garbage, not of the Syracuse system, which he had already proposed to use, but of the system in use in Detroit. The full terms of other bids do not appear in the record, but this is not material. It is sufficient to say that it appears that each one proposed a different system for the reduction and disposal of garbage, except that one was a proposal to use the Syracuse system, or another system named...