State v. Howell

• Decision Date: 24 June 1912
• Court: Delaware Superior Court
• Parties: STATE OF DELAWARE, upon the relation of DANIEL MCCORMICK v. HARRISON W. HOWELL, Mayor of the Mayor and Council of Wilmington, a corporation of the State of Delaware

84 A. 871

26 Del. 387

STATE OF DELAWARE, upon the relation of DANIEL MCCORMICK v. HARRISON W. HOWELL, Mayor of the Mayor and Council of Wilmington, a corporation of the State of Delaware

Superior Court of Delaware, New Castle County

June 24, 1912

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Superior Court, New Castle County, May Term, 1912.

MANDAMUS. Rule issued requiring the respondent to show cause why an alternative writ of mandamus should not issue as prayed for. Motion by respondent to discharge the rule and dismiss the proceedings in the cause for certain reasons based upon the alleged insufficiency of the relator's petition. The court in the following opinion held the reasons insufficient to prevent the issuance of the alternative writ, and the rule was made absolute.

PENNEWILL, C.J., delivering the opinion of the court:

In the above stated case a rule was issued requiring the respondent to show cause why an alternative writ of mandamus should not issue as prayed for.

The respondent moves the court to discharge the rule and dismiss the proceedings in the cause for the following reasons, based upon the alleged insufficiency of the plaintiff's petition, viz.:

(1) Because it does not show that the contract referred to has been examined and approved by the city solicitor for the mayor and council of Wilmington as provided by an ordinance of the City of Wilmington.

(2) Because it does not show that the bond with surety given by the relator has been approved by the mayor and president of council of the mayor and council of Wilmington as provided by an ordinance of the City of Wilmington.

(3) Because it does not show that the resolution of the board of health awarding the contract to the relator was not rescinded before the said petition was filed.

The court are of the opinion that the reasons filed are not sufficient to prevent the issuance of the alternative writ, and it is therefore ordered that the rule be made absolute, and that the alternative writ issue.

The writ issued and the return thereto was filed.

(June, 24, 1912)

PENNEWILL, C. J., and WOOLLEY and RICE, J. J., sitting.

Motion by the relator to quash and strike out the return filed by the respondent to the alternative writ of mandamus for the following reasons, viz.:

1. Because the contract relied on was awarded to the lowest and best bidder.

2. Because the awarding of the said garbage contract belonged solely and exclusively to the board of health.

3. Because the board of health is the body named by law to exercise full, sole and exclusive jurisdiction over such matters.

The respondent contended that no legal or binding contract was made by the city with the relator, because,

1. When the board of health advertised for bids it unlawfully inserted in said advertisements the following language: "Bidders must submit cut and description of the style of cart or wagon to be used by them in the collection or removal of the garbage."

2. The board of health did not lawfully award said contracts in that they were not awarded to the lowest and best bidders.

The respondent also contended that if the alleged contract was not illegal, it was nevertheless incomplete and imperfect because it was not signed by the mayor, nor had he affixed the seal of the city thereto; and that therefore the board of health had the power to rescind the action of the board which awarded the contract to the relator.

After argument, the following opinion was announced:

WOOLLEY J., delivering the opinion of the court:

From the alternative writ of mandamus issued in this case upon the petition of the relator and from the answer filed in response thereto, it appears that the relator's right to a peremptory writ of mandamus is dependent upon the consideration and determination of a number of questions. These questions, stated somewhat in the order in which they occur, are whether there was in the first instance a lawful contract between the relator and the board of health as the contracting agency of the municipal corporation of which the respondent is mayor, respecting the collection and disposal of garbage for the fourth district of the City of Wilmington, first upon the charge of an excess of the authority of the board of health in requiring, by its advertisements for bids, that each bidder file with his bid a cut or picture of the particular type or kind of cart he would use in the event of being awarded the contract, thereby making the bidding less competitive and more uncertain, and second, upon the ground that the award was arbitrarily made.

If we should consider these questions and find that a contractual relation does in fact exist between the relator and the municipality, it would then be necessary to determine, before awarding a peremptory writ of mandamus upon the mayor to sign and seal the written contract presented, whether as a matter of law, the contract was not made and completed by the bid and award and nothing remained for the mayor to do but approve the bond. To the petition in the case of State of Delaware, upon the relation of McCormick v. Fisher, 5 Penn. 273, 64 A. 68, was appended a copy of the bid made in that case, which by express language distinctly showed that both the city and the relator contemplated that their undertakings as shown by the bid and award, should be reduced to writing and signed by them, and the court, holding the act of the mayor in such a matter to be merely ministerial, commanded him to execute the written contract. In the case under consideration, however, the bid upon which the relator claims to have been awarded the contract and bases his right to ask this court to compel the respondent to execute it in writing, was referred to in the petition but was not filed with the petition and therefore it does not disclose to the court, as did the bid in the Fisher case, whether the contract was complete on the award or a subsequently written contract was contemplated and intended to be signed.

Whatever may be the solution of these questions, the primary matter for determination is whether the relator, upon his own showing, is entitled to have the mayor sign and seal the particular contract which he submits with his petition for execution. It appears by the petition, as before stated, that in the advertisement for bids, each bidder was requested and required to submit a cut or picture of the particular kind or make of cart he would use in the event of being awarded the contract. The relator complied with this request and filed such a cut with his bid and was formally awarded the contract by the board of health. Whether the contract was legal in the first instance or if legal whether it was complete on the bid and award or contemplated a written instrument subsequently to be signed, we do not say, but we do say, that from the petitioner's own showing, the contract which we are asked to compel the mayor to execute, makes no reference to the type of cart the petitioner showed by his bid he would use if awarded the contract. We therefore find that the contract which we are asked to command the mayor to sign is different from the contract based upon the petitioner's bid and the award by the board of health. We therefore conclude that the petitioner has failed to show that he is entitled to the remedy for which he prays.

The motion to quash the answer is refused and the prayer for a peremptory writ of mandamus is denied.

Whereupon the above named relator, to wit, on the eighth day of July, filed five other petitions for the issuance of writs of peremptory mandamus. (Pennewill, C. J., and Woolley and Rice, J. J., sitting.) Objection was made to the issuance of rules to show cause. It was agreed by counsel that the court might consider and determine all questions that could be raised either upon the return of the rule or upon the return to the alternative writ, etc.

In the first petition the relator asked that a rule issue requiring the former board of health "to show cause why a writ of peremptory mandamus should not issue against them requiring them to meet and draw up and present to your petitioner for execution, a written contract in accordance with the contract actually awarded by them to your petitioner."

This petition was, after argument, dismissed, for the reason that if such a contract should be drawn up and presented, it should be done by the present board. While the terms of office of the preceding members of the board of health have expired, the board itself has not ceased to exist, but the office continued with different personnel.

In the second petition the relator asked that a rule issue, requiring Daniel O. Hastings, city solicitor, "to show cause why a writ of peremptory mandamus shall not issue against him, requiring him to draw up the said above mentioned contract."

This petition was also dismissed because it did not appear to the court that there was any law making it the duty of the city solicitor to perform such duty.

In the third petition the relator asked that a rule issue, requiring Harrison W. Howell, mayor, "to show why a writ of peremptory mandamus shall not issue against him requiring him to execute the said above mentioned contract by signing his name thereto as mayor and affixing the corporate seal of the said The Mayor and Council of Wilmington' thereto."

This petition being predicated upon the issuance of the writ of peremptory mandamus in the first two petitions, which being dismissed, it was also dismissed.

The fourth and fifth petitions asked that rules issue requiring the said Harrison W. Howell, mayor, as aforesaid, and Samuel H. Benson, president of council, respectively, "to show cause why a writ of peremptory mandamus shall not issue against him requiring...