Safety Insulated Wire & Cable Co. v. City of Baltimore

• Citation: 66 F. 140
• Decision Date: 05 February 1895
• Docket Number: 112.
• Parties: SAFETY INSULATED WIRE & CABLE CO. v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

66 F. 140

SAFETY INSULATED WIRE & CABLE CO. v. MAYOR AND CITY COUNCIL OF BALTIMORE.

No. 112.

United States Court of Appeals, Fourth Circuit.

February 5, 1895

Wm Pinkney Whyte (Morrill H. Packard, appearing in brief), for plaintiff in error.

Thomas G. Hayes, for defendant in error.

Before GOFF and SIMONTON, Circuit Judges, and BRAWLEY, District Judge.

SIMONTON Circuit Judge.

This case comes up by writ of error to the circuit court of the United States for the district of Maryland. The city of Baltimore, by authority of an act of the legislature and a vote of the people, was authorized to issue a loan of $6,000,000 for certain specified purposes, among them 'the laying of conduits for telegraph and other wires ' The apportionment of the sum obtained from this loan was left with the city council of Baltimore. Exercising this discretion, the mayor and city council, October 7, 1892, set apart $250,000 of the loan for constructing conduits for underground wires in Baltimore as may hereafter be directed by ordinances of the mayor and city council of Baltimore. Ordinance 100, 1891-92. By chapter 200 Acts 1892, of the state of Maryland, the mayor and city council of Baltimore were authorized--

'To provide a series of conduits under the streets, lanes and alleys of the city or any part or parts thereof for the use of telephone, telegraph, electric-light and other wires, either by constructing such conduits themselves or by authorizing their construction by any person or corporation upon such terms as may be agreed upon, and to provide for the appointment of an electrical commission, with such powers and duties as the said mayor and city council may deem necessary or appropriate for carrying out the purposes of this act; and to require all such wires or any part or parts thereof and the poles carrying the same to be removed from the surface of the streets, lanes and alleys of said city or any part or parts thereof and to require such wires to be placed in such conduits, all under such penalty as they may prescribe, and to prescribe and establish reasonable rentals to be paid by any company or person using any of said conduits by whomsoever the same may be constructed for the use thereof, and to provide for the collection of said rentals in addition to the ordinary processes by such summary methods as they may deem appropriate.'

The city of Baltimore itself had a system of telegraph and telephone wires carried on poles in said city, used exclusively by the city for the use of the police and fire departments, respectively. At the time of the passage of the ordinance of 1893 next mentioned, out of which this case arose, the city of Baltimore had given to the Chesapeake & Potomac Telephone Company the privilege of constructing conduits for its wires under the streets, lanes, and alleys of the city, reserving to the city the right to use the conduits and subways of that company for its own wires without cost to the municipality. Under these circumstances the mayor and city council of Baltimore, on 1st May, 1893, passed an ordinance No. 106. The title of the ordinance is 'An ordinance to place the wires of the police and fire alarm telegraph and police patrol systems under ground. ' It puts the matter in charge of the board of fire commissioners and the superintendent of the police and fire alarm telegraph, and authorizes and directs them to advertise for proposals to furnish cables, conduits, and trenching, separately or as a whole, when it may be necessary. It directs that the subways and conduits of the Chesapeake & Potomac Telephone Company be used, as far as practicable, under the right reserved to the city to place therein the wires of the police and fire alarm telegraph and police patrol telegraph. It empowers them, after deciding upon the cable or cables best in their judgment, to award the contract to the lowest responsible bidder or bidders. It appropriates for this work $100,000 of the $250,000 'set apart for laying conduits for underground wires' in the ordinance distributing the $6,000,000 loan. The board of fire commissioners and the superintendent of the police and fire alarm telegraph, acting under this ordinance, advertised for bidders to do this work. The Safety Insulated Wire & Cable Company put in a bid for $97,985, and it was accepted on 28th June, 1893. On 30th June, 1893, this company declared itself ready to begin and conclude the work. On the same day it was informed by the board of fire commissioners and the superintendent of the police and fire alarm telegraph, by a secretary, that the vote awarding the contract to the Safety Insulated Wire & Cable Company was considered, for that the ordinance authorizing the same is defective and void for indefiniteness, as declared by the opinion of the city solicitor. The Safety Insulated Wire & Cable Company made no further progress in the work, but it brought its action in the circuit court of the United States for the district of Maryland against the mayor and city council of Baltimore for the breach of contract. The defendant interposed a special plea to the declaration. This plea, in effect, is that under the advice of the city solicitor the board of fire commissioners and the superintendent of the police and fire alarm telegraph reconsidered their action accepting the bid of plaintiff, and so notified it, and that the city council subsequently repealed the ordinance of May 1, 1893, under which the contract was given out, concluding with the averment that it appears by the bill of particulars filed with the declaration, plaintiff had done no work under the bid which had been accepted by the defendant, and had incurred no expense whatever under said bid so accepted. The plaintiff demurred to the plea. The cause was heard on the demurrer, and it was overruled. Thereupon plaintiff excepted, and the case comes here on the assignments of errors.

The assignment of error relied upon by appellant is the third. The court was in error in not discriminating between the acts of the municipal corporation when acting in its governmental capacity and when acting as a property holder, and putting contracts made in these different capacities upon the same level of liability for nonperformance. That this contract was made by the...