72 Md. 106 | Md. | 1890
delivered the opinion of the Court.
This is a bill to restrain the defendant officials from entering into a contract for lighting certain streets and public buildings in Baltimore City, with electric lights; and to restrain the city authorities from paying any money under said contract. It is filed by tax-payers of the city in their own behalf, and in behalf of all other tax-payers who may see fit to come in as parties. The injunction is asked on the ground that the defendants have no lawful power to make the contract in question, and that the contract, if made, will impose upon the complainants an increased burden of taxation. Now, if this he so, — if the contract is one which the defendants have no authority to make, and the contract, if made, will increase the burden of taxation, — then the injunction was properly granted. Since the decision in Mayor and City Council of Baltimore vs. Gill, et al., 31 Md., 395, this can no longer, he considered an open question. Whilst freely recognizing the general principle, that public wrongs are not to be redressed at the suit of individuals who have
The authority of these cases is in no manner weakened, nor is the principle upon which they were decided in any manner questioned, in the subsequent cases of Mayor, &c. of Baltimore vs. Weatherby, 52 Md., 442, and Kelly, Piet & Co. vs. Mayor, &c. of Baltimore, 53 Md., 134. There was no ordinance in Weatherby’s Case, say the Court, “requiring the Board of School Commissioners to advertise for sealed proposals for furnishing supplies or heating apparatus for school houses.” The sxibjectmatter was one entirely within the power and control of the Mayor and City Council, and there was no ground, therefore, for the interference of a Court of equity.
And in Kelly, Piet & Co., the whole controversy in the opinion of the Court was one “between rival tradesmen for the custom of the Mayor and City Council, in supplying the departments with stationery and printed matter,' ’ in regard to which the public had no concern.
By section 1 of this ordinance, the defendants were authorized to contract with the lowest responsible bidder for lighting certain streets and public buildings with electric lights.
Section 2 provides they shall advertise in the daily newspapers for proposals, and that the proposals filed shall he opened, and the contract shall be awarded to the lowest responsible bidder at 12 o'clock, June 1st.
Section 3 requires that each proposal shall be accompanied by a cash deposit or certified check of $5000.
This is the ordinance under which the authority of the Mayor and the Comptroller and the Superintendent of Lamps to make the contract in question is derived, and these are the terms and conditions by which the exercise of this authority is to be governed. Now, it can hardly be necessary to say that, where a special power is thus conferred upon officers of a municipal corporation to make a contract, and the terms and conditions upon which the authority is to be exercised are prescribed, there must be at least a substantial compliance with such terms and conditions, or the contract will be invalid.
Now, in authorizing the defendants to make a contract for lighting certain streets and public buildings, the ordinance required in the first place, that they should advertise for proposals; and then it required that they
Eor reasons which do not appear, the Mayor and Comptroller and Superintendent of Lamps, have not deemed it necessary to answer the bill; and the only answer filed, is one filed by the Brush Electric Company. After denying the power of the defendant officials to designate the office of the Superintendent of Lamps as the only place to file proposals under the ordinance, this company says, it filed with the Mayor sealed proposals for electric lighting, in conformity with the requirements of the ordinance, and that some time before tbe hour of 12 o’clock noon, June 1st, the Mayor sent for the Comptroller and for the Superintendent of Lamps;that the Comptroller thereupon appeared, and that at six minutes past 12 o’clock, the Mayor took from his desk the proposal filed by the defendant company, saying, “the time had arrived for the consideration of bids for electric lighting, ’ ’ and after referring to the absence of the Superintendent of Lamps, and making some inquiries whether any other bids had been filed, he opened said proposal, and having read it, handed it to the Comptoller; and “without haste or hurry of any kind,” the Mayor said, “As there appears to be but one bid, there is nothing for us to do, but to award the contract to the Brush Company;” and thereupon, at the suggestion of one of the representatives of the company, standing by, the Mayor, with the assent of the Comptroller, announced that the contract was awarded to the Brush Company. Just at this time, Mr. King, the Superintendent of Lamps, entered the room with an envelope in his hand, which was endorsed ‘‘Proposal for Electric Lighting, ’ ’ and addressed to the Mayor, Comptroller, and Superintendent of Lamps. It was then ten minutes past 12 o’clock.
But then, it was argued, there is no ground for the interference of a Court of equity, because the bill nowhere alleges that the proposal which the defendants refused to open and consider was a lower bid than the one filed by the Brush Company, and it does not, therefore appear that the complainants suffered any damage by the refusal to consider this bid. This assumes that the defendants had the power to make a contract for electric lighting, without reference to the terms and conditions of the ordinance under which the power is exercised, and that upon a bill filed to restrain the execution of such a contract, the complainants must allege and prove that a contract on better and more favorable terms might have been made, if the requirements of the ordinance had been complied with. We cannot agree to this. They had no power to make a contract except in the mode and manner prescribed by law; and we agree with the Court below that the complainants “have a right to require that the money they have contributed for the public benefit, shall be spent only for the purposes, and in the manner authorized by law, and that every security designed to protect its proper expenditure shall be faith
Other objections were relied on in argument, in regard to which we have but a word to say. It was argued that the proposal which the defendants refused to open ought to have been filed as an exhibit with the bill. Now, it is true, where the right to an injunction is based upon a written instrument in the possession of the complainant, or to which he has ready access, the instrument itself, or a copy, ought to be filed with the bill, in order that the Court may see whether the complainant is entitled to the relief prayed. But here the right of the complainants to an injunction is not founded on the written contents of the proposal filed with the Superintendent of Lamps, but upon the averment, that a proposal was filed with him in conformity with the requirements of the ordinance, and that this proposal the defendants refused to open and consider. This averment is not denied in the answer, and must therefore be taken as true. And, besides, this proposal was not made by the conrplainants but by a stranger; and they had no,right to demand either the proposal itself, or a copy. We shall not stop to consider whether this bill is filed in good faith, nor whether the rejected proposal was filed by a company authorized by its charter to do electric lighting. These are matters in no manner responsive to the bill, and must be established by proof
Order affirmed, and cause remanded.