Palmer v. Central Board of Education

• Decision Date: 14 July 1909
• Docket Number: 90-1909
• Citation: 40 Pa.Super. 203
• Parties: Palmer v. Central Board of Education of the City of Pittsburg. (No. 1.)
• Court: Pennsylvania Superior Court

40 Pa.Super. 203

Palmer v. Central Board of Education of the City of Pittsburg. (No. 1.)

No. 90-1909

Superior Court of Pennsylvania

July 14, 1909

Argued April 16, 1909 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by S. C. Jamison et al., members of the Central Board of Education of the City of Pittsburg, from decree of C.P. No. 4, Allegheny Co., No. 649, Third Term, 1907, in proceedings for contempt in case of George C. Palmer et al., trading as Palmer & Hornbostel, and Emlyn Stewardson et al., trading as Cope & Stewardson, and Cass Gilbert v. The Central Board of Education of the City of Pittsburg.

Petition for an attachment for contempt.

Swearingen, P. J., found the facts to be as follows:

1. As heretofore found in the record of the above-stated case nine designs had been submitted for the competition in accordance with the method adopted by the Central Board of Education at its meeting May 8, 1906. Of these, the design of Rutan & Russell, No. 9, had been recommended for adoption in accordance with said programme of competition, and on December 11, 1906, the Central Board of Education refused to adopt the report of the building committee. A motion was made to reconsider said vote, which motion was laid upon the table. Nothing further was done with that competition.

On June 4, 1907, the new building committee reported to the central board that it had selected F. J. Osterling as the architect and recommended his design. This report at that time failed for want of a majority. In making choice of F. J. Osterling as architect the building committee and the board abandoned the plan of competition which had theretofore been adopted, and were proceeding under another and different method altogether.

Thereupon the bill in this case was filed, in which the plaintiffs prayed for an injunction to restrain the Central Board of Education from choosing an architect otherwise than by the plan of competition formerly provided. The case proceeded to final hearing and the decree was entered January 2, 1908, in which the injunction prayed for was granted. From this decree an appeal was taken to the Supreme Court of Pennsylvania and on April 30, 1908, a remitittur from the Supreme Court was filed showing that the decree of the lower court had been affirmed and the appeal dismissed.

The respondents, to wit: S. C. Jamison, President; Bart Fleming, M. G. Hayes, Evan Jones, P. B. Kearns, Edward Kenna, E. J. Kirby, R. P. Lougeay, T. E. Metcalf, W. S. McCutcheon, Wm. B. McHugh, J. M. Patton, Peter J. Pfaadt, Dr. J. W. Phillips, Dr. J. P. Saling, Eugene Schwartzwaelder, P. F. Toole, J. P. Woods, W. H. Ziefel, Frederick Bruckman, P. Fitzgerald, F. V. Martin and John L. Freker, expressly admit in their answer that " they have had full notice of the decree of your honorable court and the affirmation of that decree by the Supreme Court of Pennsylvania."

2. On May 12, 1908, the special committee of the Central Board of Education, which had been appointed to select plans and an architect for a new high school building, met. The following members were present: Messrs. Foley, Jamison, Jones, Kirby, McHugh, Phillips, Reinecke and Saling. It was resolved to report to the central board that disposition be made of the design presented by Rutan & Russell. A motion to hear an explanation of the designs from Prof. Warren P. Laird, the advisor, was lost.

On May 14, 1908, the Central Board of Education met, and finally rejected the designs submitted by Rutan & Russell, which had been recommended to the board on December 11, 1906.

On May 21, 1908, the said building committee again met, with Dr. J. P. Saling in the chair. The following members were present: Messrs. Easton, Foley, Jones, Kirby, Phillips, Reinecke and Saling. The committee took up the design No. 7. The envelope was opened and it was found that Cass Gilbert was the author of design No. 7 and thereupon the committee unanimously adopted a report to the central board that the design next in merit was that of Mr. Cass Gilbert, which was submitted for the approval of the board, and recommended his election as architect. This meeting of the building committee was in session about two hours.

On May 22, this report was submitted to the central board and by a vote of ten ayes to twenty-six nays the report was not adopted. Of the members of the building committee who had recommended the adoption of the design of Cass Gilbert and the choice of him as architect, Jones, Kirby, McHugh, Phillips and Saling voted in the negative when the report came before the board.

A motion was then made that a recess of twenty minutes be taken and that the committee meet and make another recommendation. Thereupon the building committee again met with Messrs. Easton, Foley, Jones, Jamison, Kirby, McHugh, Phillips and Saling present. A motion was made and agreed to take up the design next in order of merit. None of the remaining designs were even present before the committee. A protest was made by Mr. Easton and Mr. Foley against proceeding having the designs, to which no attention was paid. Thereupon design No. 2 was taken up and the same report was recommended to the board as had been made upon the design submitted by Cass Gilbert, except that the name of Cass Gilbert was stricken out and the name of Edward Stotz, who was found to be the author of No. 2, was substituted.

Forthwith that report was made to the central board, which had reconvened after an intermission of twenty minutes, and the design of Edward Stotz was not adopted, a majority of the members of the building committee again voting in the negative.

Again a suggestion was made by Mr. Foley that Prof. Warren P. Laird be requested to attend to aid the committee in conducting the competition, which was declared out of order, and the board again adjourned for fifteen minutes that the committee might select another plan.

The committee then did meet and took up another design and made the same report as it had made in the previous cases, substituting the name of another architect in place of the names of those previously rejected. The central board reconvened at the end of the recess of fifteen minutes and rejected that report. In like manner the board and the committee disposed of the designs of all the remaining architects, the committee meeting during the intermissions which at first were for twenty minutes, afterwards for fifteen minutes and once for ten minutes, by substantially the same vote. Occasionally the votes differed, but the respondents were always found voting in the negative.

4. Professor Warren P. Laird who had been selected as the professional adviser of the committee was not present at any of these meetings of either the central board or the building committee from May 12 to May 22, both inclusive. His presence was requested on several occasions, both in committee and in the central board, but the request was always refused by the majority of the committee and of the board.

The said general board met on the evening of May 8, 1908, at about 8 o'clock P. M. and finally adjourned at about 10:45 o'clock P. M. During that period of about two hours and forty-five minutes, six designs were disposed of by the building committee and seven by the board itself. The evidence does not show that any consideration was given to any of these designs other than that of the most perfunctory kind. They were each in turn taken up by the building committee and reported to the board with a recommendation of adoption as quickly as possible, and each in turn was rejected by the board in a like perfunctory manner, and all the members of the building committee which recommended each of these designs, except Easton, Foley and Reinecke, voted for their rejection when the designs came before the board.

5. On May 26, 1908, the Central Board of Education again met and took up the plans of J. F. Osterling, whose consideration had been suspended by the filing of the bill in this case June 11, 1907. By the following vote said plans were adopted and Mr. Osterling elected architect, viz.:

Ayes: S. C. Jamison, Bart Fleming, M. G. Hayes, Evan Jones, P. B. Kearns, Edward Kenna, E. J. Kirby, R. P. Lougeay, T. E. Metcalf, W. S. McCutcheon, Wm. B. McHugh, J. M. Patton, Peter J. Pfaadt, Dr. J. W. Phillips, Dr. J. P. Saling, Eugene Schwartzwaelder, P. F. Toole, J. P. Woods, W. H. Ziefel, Frederick Bruckman, P. Fitzgerald, F. V. Martin and John L. Freker.

Nays: Beatty, Force, Gillespie, Glazier, Johnson, McPherson, Neely, Reif, Shaw, Easton and Shooke.

Not voting: Mr. Stauffer.

The court entered a decree fining each of the members of the board who voted in disobedience of the injunction order in the sum of $ 100.

Error...