Stern v. City of Spokane

• Decision Date: 12 October 1910
• Citation: 111 P. 231,60 Wash. 325
• Parties: STERN v. CITY OF SPOKANE et al.
• Court: Washington Supreme Court

111 P. 231

60 Wash. 325

STERN v. CITY OF SPOKANE et al.

Supreme Court of Washington

October 12, 1910

Department 1. Appeal from Superior Court, Spokane County; J. Stanley Webster, Judge.

Action by Harold H. Stern against the City of Spokane and others. Judgment for defendants. Plaintiff appeals. Affirmed.

Samuel R. Stern, for appellant.

Fred B Morrill, Poindexter & Moore, and O. C. Moore, for respondents.

CHADWICK J.

This action is prosecuted by appellant, who is a taxpayer in the city of Spokane, to restrain the city from accepting and paying for certain pumping machinery contracted for by its board of public works. The contract was awarded to the Allis-Chalmers Company. This company, like the Moran Engineering Company, of which appellant is an officer and stockholder, is engaged in the business of contracting for machinery of the character mentioned. The Allis-Chalmers Company and Moran Engineering Company had submitted bids on the 5th day of November, 1909; the Moran Company being the lowest bidder. Thereafter a member of the board of public works, together with the city engineer allowed the Allis-Chalmers Company to modify its bid and were about to award a contract to it, when, upon advice of the city attorney that their proceedings were irregular, the board undertook to readvertise for bids. Thereupon, at the solicitation of the board of public works, the city council passed a resolution declaring an emergency. This resolution was passed on the 15th day of December, 1901, and an advertisement for bids was inserted in the Evening Chronicle a newspaper published on the evening of the 16th of December, and in the Spokesman-Review, a newspaper published on the morning of the 17th. The time for receiving bids was fixed in the advertisement for the hour of 2 o'clock p. m. on the 17th. The later proposal differed from the one under which the original bids had been submitted, in that it provided that 'the board of public works reserved the right to reject any and all bids submitted.' Both the Allis-Chalmers Company and the Moran Engineering Company submitted bids on the 17th, the Moran Engineering Company being again the lowest bidder, and it is alleged in plaintiff's complaint that its bid conformed in every respect to the requirements of the advertisement and the specifications on file in the office of the city engineer, and that the bid of the Allis-Chalmers Company did not. Notwithstanding the board let the contract to the Allis-Chalmers Company. The proposal for bids specified the following equipment: 'Three 7,500,000 gal. multi-stage centrifugal pumps; three inductive motors, switch board and connections.' The bidders offered machinery of different manufacture, but in the opinion of the bidders offering it capable of doing the work required and coming within the equipments specified. The contention of the appellant is that, not only the letter of the law, but the spirit also, was violated by the action of the council and the board of public works. The case may be reduced to two propositions of law: (1) Did the council have the power to declare an emergency; and (2) did the board of public works have a legal right to reject the bid of the Moran Engineering Company? We shall discuss these questions in their order.

While it is alleged that the board acted in fraud of the rights of the competing bidder, it does not follow as a legal proposition from the seemingly arbitrary conduct of the board that a presumption of fraud will arise; so that, however great the wrong may have been to the Moran Engineering Company or to plaintiff, he can have no remedy provided the council and the board of public works acted within the law. The freeholders' charter of the city of Spokane provides 'Sec. 98. When it shall be decided to do work by contract, they shall advertise at least ten days in two daily newspapers of the city for bids, accompanied by a certified check to an amount to be fixed by the board and named in said advertisement, not exceeding ten per cent. of the estimated cost of the work, reserving the right to reject any and all bids; provided, that in all contracts awarded in which the probable amount of expenditure would exceed $1,000, the publication shall be made for a period not less than twenty days. If the mayor and city council shall by resolution declare an emergency to exist, the publication herein provided for may be dispensed with.' Acting under this provision of the charter, the council declared that an emergency did exist, and, so far as the Moran Engineering Company is concerned, there was no prejudice, for it was not barred of its right to submit a competitive bid. But inasmuch as plaintiff prosecutes this action as a taxpayer and citizen, and not alone because of his interest in the Moran Engineering Company, we are willing to pass upon the merits of the question. All of the provisions of the law with reference to bids for public works are to be found in the freeholders' charter. No constitutional question is involved. That which the Legislature can give it can take away; and, while we agree with counsel for appellant that, if the action of the council in declaring an emergency to exist be upheld, it practically nullifies those provisions of the charter which were designed to insure open competition in the matter of letting contracts for public works, we must nevertheless hold that it can be no concern of the courts if it does. If the Legislature passes a wholesome law and at the same time creates a weapon to strike it down, it is still within the limits of its constitutional authority, as much so as if it had repealed an existing statute by express enactment. It is so in this case. The charter does not say that time may be dispensed with if an emergency exist, thus leaving the court free to inquire into the fact, but it says that the council shall have the power under any state of facts to declare an emergency. The rule in such cases is stated in Dillon v. Whatcom County, 12 Wash. 391, 41 P. 174, as follows: '* * * While it might appear to the court as a matter of public policy that great evil and inconvenience would result from an injudicious or mean policy on the...