United States Wood Preserving Co. v. Sundmaker

• Decision Date: 20 April 1911
• Docket Number: 2,092.
• Parties: UNITED STATES WOOD PRESERVING CO. v. SUNDMAKER, Director of Public Service, et al.
• Court: U.S. Court of Appeals — Sixth Circuit

186 F. 678

UNITED STATES WOOD PRESERVING CO. v. SUNDMAKER, Director of Public Service, et al.

No. 2,092.

United States Court of Appeals, Sixth Circuit.

April 20, 1911

The complainant, an unsuccessful bidder for a public contract filed a bill to enjoin the performance of and annul the contract awarded to a competitor, and to compel the acceptance of its bid and the execution of a contract with it. Demurrers to the substance of the bill, for want of equity, and misjoinder of parties were interposed and sustained, for the reason that the complainant is without capacity to maintain the bill. The complainant declining to plead further, the bill was dismissed and a reversal of the trial court's action is now sought.

The averments of the bill, in so far as material, are as follows:

The director of public service, in pursuance of proceedings duly had by the city council of Cincinnati, advertised for bids for the improvement of a portion of Reading Road with wood block. Concerning the wood block and oil to be used in the construction of the improvement the specifications provided as follows:

'The bidder must deposit with the board of public service, at the time of making his bid, samples in suitable boxes or jars, of the following materials intended to be used properly labeled with the name or brand of the contents viz.:

'Sample of not less than 1 quart of heavy or 'dead' oil of coal tar.

'Two blocks each, of both treated and untreated blocks.

'Each labeled with the name of the bidder and the name of the street on which he is a bidder.

'The distillation shall be made with approximately 100 grams of oil in a six-ounce retort.

'The distillation shall be completed within thirty (30) minutes after the first portion of the distillate passes into the receiver.

'Explanation. Any oil which does not contain more than three-fourths (3/4) of one (1) per cent. of free carbon will for the purposes of these specifications be held to be 'free from carbon.'

'The oil shall be free from carbon and shall contain not more than two and one-half (2 1/2) per cent. of matter in suspension. The oil must be free from adulterations, and it must be obtained wholly and entirely from coal tar and must not contain any oil derived from water gas tar, oil gas tar or other tars.'

The complainant submitted a bid offering to construct the improvement for $250,367.50. The chemist of the director having analyzed the several samples of oil submitted reported that complainant's did not meet the requirements of the specifications because it did not contain the largest possible amount of anthracene and anthracene oil. Its bid was thereupon rejected and that of Henkel & Bro. for $262,827.20 was declared to be the lowest and best, and a contract was duly made with them to construct the improvement. The lowest bid was rejected on account of impurities in the sample of oil submitted. One of the five bids higher than complainant's, but lower than that of Henkel & Bro., was ignored because the sample tendered was the oil of tar. The bill alleges that the complainant's bid complied with all the requirements and conditions of the specifications, that they do not require or provide that the oil of coal tar in the sample submitted with its proposal, or to be used in the treatment of the block, shall contain the largest possible amount of anthracene and anthracene oil, or any of either, that complainant's sample contained a large amount of both anthracene and anthracene oil, and that its bid is the lowest and best and itself the lowest and best bidder and consequently entitled to the contract. The bill further charges that the rejection of its proposal on the sole ground that the sample of complainant's oil did not comply with the specifications because it did not contain the largest possible amount of anthracene and anthracene oil, and the finding that the bid of Henkel & Bro. was the lowest and best and they the lowest and best bidders, were not based on the proposals, or on facts contained therein, or on the analyses or tests of the samples submitted, or on the requirements, conditions, or provisions of the specifications, and were untrue in fact, and that such finding and the making of the contract with Henkel & Bro. were arbitrary, in contravention of law and of the specifications, a violation and abuse of the corporate powers of the city and of the lawful discretion of the director, and in violation of the complainant's rights, for the protection of which it has no adequate remedy at law. Complainant is financially responsible, and ready, able, and willing to perform the contract according to its requirements.

The material portions of the General Code involved are as follows:

'Sec. 4328. The director of public service may make any contract or purchase supplies or material or provide labor for any work under the supervision of that department not involving more than five hundred dollars. When an expenditure within the department other than the compensation of persons employed therein, exceeds five hundred dollars, such expenditure shall first be authorized and directed by ordinance of council. When so authorized and directed, the director of public service shall make a written contract with the lowest and best bidder after advertisement for not less than two nor more than four consecutive weeks in a newspaper of general circulation within the city.

'Sec. 4329. The bids shall be opened at 12 o'clock noon, on the last day for filing them, by the director of public service and publicly read by him. Each bid shall contain the full names of every person or company interested in it, and shall be accompanied by a sufficient bond or certified check on a solvent bank, that if the bid is accepted a contract will be entered into and the performance of it properly secured. If the work bid for embraces both labor and material, they shall be separately stated with the price thereof. The director may reject any and all bids. Where there is reason to believe there is collusion or combination among bidders, the bids of those concerned therein shall be rejected.'

Lawrence Maxwell, Joseph S. Graydon, and Joseph L. Lackner, for appellant.

Edward M. Ballard, for Sundmaker and others.

Louis J. Dolle and James B. O'Donnell, for August Henkel & Bro.

Before SEVERENS and KNAPPEN, Circuit Judges, and SATER, District judge.

SATER District Judge (after stating the facts as above).

Under the facts stated, may a court review the director's action in rejecting complainant's bid and in awarding a contract to and entering into a contract with Henkel & Bro. and enjoin the performance of and annul the contract thus made, and compel an award to and the making of a contract with the complainant?

The question presented is one of local law, and must be decided with reference to the well-pleaded facts, the statute involved, and the construction, if any, given to it by the state's highest tribunal. If the bidder has an enforceable right, this court may afford him relief.

The bill alleges that the specifications did not call for an oil containing the largest amount of anthracene and anthracene oil, or any of either. The dead oil of coal tar is commonly called 'creosote,' and is extensively used as a preservative in the treatment of wood block for paving. It had previously been specified for such purpose in public lettings in Cincinnati. State v. Miller, 10 Ohio Cir.Ct.R. (N.S.) 406. In that case the complainant was a party, and, having regard to the difference in registering degrees of temperature on the Centigrade and Fahrenheit thermometers, the specifications as to the character of oil there under consideration were substantially the same as in this case.

The rule is well settled that courts will take notice of whatever is generally known within the limits of their jurisdiction, and, if a judge's memory is at fault, he may refresh it by resorting to any means for that purpose which he may deem safe and proper. This extends to such matters of science as are involved in cases brought before him. Brown v. Piper, 91 U.S. 37, 42, 23 L.Ed. 200; King v. Gallum, 109 U.S. 99, 101, 3 Sup.Ct. 85, 27 L.Ed. 870; Eureka Vinegar Co. v. Gazette Printing Co. (C.C.) 35 F. 570; Wigmore on Ev. Sec. 2580; 7 Ency.Ev. 1031, 1032. Notice, therefore, will be taken of the fact that the creosote oil of commerce called for by the specifications contains both anthracene and anthracene oil. Anthracene is one of its high boiling constituents, a fact which the specifications themselves suggest. The United States Department of Agriculture, as shown by 'Circular No. 98, Quantity and Character of Creosote in Well Preserved Timbers' and 'Circular No. 141, Wood Paving in the United States,' to determine what is in fact a good oil for the preservation of wood, has repeatedly extracted the creosote employed for that purpose from treated timber, and, in so far as the results are shown and tabulated in Circular No. 98, the distillates have uniformly shown the presence of anthracene oil, and in most instances in a large amount. Heavy oils of coal tar which contain the greatest percentage of anthracene oil remain almost indefinitely in the treated wood and protect it from decay and boring animals, the timbers treated being the most lasting when such oil is present in the largest quantity.

Considering the bill in the light of the well-known facts disclosed by science, it first recites that the specifications...