The opinion of the court was delivered, by
By the resolutions of the councils of the city and county of Philadelphia, of November 13th 1869, the department of highways were authorized and directed “ to enter into a contract with a competent paver or pavers, who shall be selected by a majority of the owners of property fronting on Orthodox street, from Frankford street to Tacony road (in the twenty-third ward), for the paving thereof.” It cannot be controverted that a discretion was thereby vested in the department to determine the question of the competency of the paver who might be selected. It is true, that no objection was made to Mr. Peters, the nominee, on the ground of want of competency. But it is very important to bear in mind the fact that this discretion existed in considering the question which arises upon this record, whether the learned judge below was right in charging the jury as he did in substance, that a selection once made by a majority of the owners of property was irrevocable without cause. If the department exercised its discretion in favor of a paver selected by the majority, the terms of the resolution were complied with. Why should the owners be absolutely bound by their first nomination — for nomination was all that it was ? The learned judge thought that if the nomination was acted on by the nominees they were estopped from making any other selection without cause. But what was done by the nominee that ought to work such an estoppel ? It is said, that as required by law he had advertised his intention to apply to the department for the contract and had incurred that expense. But the very object of the law in requiring the advertisement was to call public attention to the claims of the 'nominee. It is evident that the whole proceeding was in fieri until a contract was actually awarded. Until then, the question of the competency of the paver selected was open to be decided by the department adversely to him, and upon well-settled principles, the court could not be called upon to command them to exercise their discretion in favor of any particular person. It is clear that they could not award the contract to any person not selected, and had the mandamus prayed for and awarded been to command the commissioners not to give the contract to Johnson & Faunce, because they were not duly selected, it could better have borne an argument. But by a peremptory mandamus to the commissioners to
We think it follows from this course of reasoning, that the learned.judge below fell into an error in holding that “the selection made by the owners in September 1869, of the relator, exhausted their power.” It may be that Peters had a right of action against them for revoking their selection without sufficient cause, if he had incurred expense on the footing of it, but the nomination was essentially a revocable act while the proceeding was in fieri and before the contract was actually awarded. The owners ought not to be bound by a hasty or unwise ■ selection, nor to be required to assign a sufficient cause for revoking it if they see fit to do so. For the reasons given we think the peremptory mandamus ought not to have been awarded.
Judgment reversed.