143 Iowa 409 | Iowa | 1909
Ordinance No. 452 of the city of Des Moines, passed December 17, 1888, and amended April 17, 1899, enacts and establishes certain regulations concerning supplies procured or purchased for the use of the city. So far as is material to this case said ordinance is in the following word#:
*411 Advertising for Supplies. Section 1. The city clerk is hereby required to advertise in at least two newspapers published in the city of Des Moines for three weeks, two insertions each week, for bids for furnishing all supplies of every kind for the several departments of the city not required to be advertised for by the board of public works. Whenever such supplies, together with the printed matter required to be advertised for by the board of public works, includes printed stationery, printed blanks, printed reports or other printed matter, the same shall have printed thereon the Allied Printing Trades Council Label.
Statement of Supplies Needed. Sec. 2. Each officer or board in charge of any department shall furnish and file in the city clerk’s office thirty days before the first day of each fiscal year, a sworn, detailed statement of the supplies necessary for his or their department during the next fiscal year.
Penalties. Sec. 3. Any person violating any of the provisions of this ordinance shall be subject to a fine of not less than $5 nor more than $10.
On December 19, 1899, an ordinance, No. 1060, was enacted providing that all proceedings, ordinances and resolutions of the city council shall be published in pamphlet form under such regulations as may be imposed by the council. It was also further, provided that the contract for the production of such pamphlets shall be let to the lowest bidder after a period of advertising for proposals. On July 18, 1906, Ordinance No. 1383 was passed, amending section 3 of Ordinance 1060, to make the same read as follows:
The city clerk shall each year, at the time of advertising for bids for supplies, advertise by two insertions in each of two daily papers for sealed proposals for publishing said pamphlets for the next year. Said bids when received shall be submitted to the council at their first meeting after bids are received, the contract shall be made with the lowest responsible bidder, but the council may reject all bids and direct the clerk to advertise for new proposals;*412 each bid shall be accompanied by a certified check in the sum of $50, payable to the order of the treasurer as security that the bidder will enter into contract for doing the work, and give the bond required. The contract shall be prepared by the solicitor and executed by the mayor on behalf of the city, and shall be accompanied by a bond in the penalty of $500, with a corporate surety, conditioned for the faithful performance of the contract. Said contract apd bond shall be filed with the city clerk, but the city shall not be bound thereby until the contract and sureties in the bond have been approved by the city council. All ordinances and parts of ordinances inconsistent herewith are hereby repealed.
Pursuant to the terms of the last-mentioned ordinance the city clerk advertised for proposals for the work of publishing the council proceedings for the year beginning April 1, 1908. Responding to this call bids were tendered by eight different firms or companies doing business as job printers in the city of Des Moines, as follows:
Bischard Bros ................ $1 12 per page.
Welch Printing Company..... 1 01 « cc
Iowa Printing Company....... 97 Cl cc
Register & Leader Company. ... 95 cc cc
Kenyon Printing Company. .. . 93 cc cc
Homestead Company ......... 92 cc cc
G. A. Miller Printing Company 89% “ “
Globe Publishing Company. .. . 89 “ “
On May 14, 1908, the council voted to award the work to the Register & Leader Company, and directed the mayor to enter into a contract with said company on the terms of its bid. The contract was executed accordingly on or about the date last mentioned, and the printing of the council proceedings for the fiscal year has been done by the Register & Leader job office under the terms of said agreement. On May 16, 1908, this action was instituted. The plaintiffs.
The petition alleges that, of the eight bidders for the work of printing the council proceedings as hereinbefore shown, the four whose bids were lower than the bid of the Register & Leader Company conducted what is known as non-union offices — that is, the said bidders did not employ exclusively what is known as “union labor” — and could not lawfully attest their work with the “union label,” for which reason, as plaintiffs allege, the city council wrongfully and without authority of law excluded the bids of such non-union competitors from consideration in awarding the contracts and awarded it to the Register & Leader Company, not because it was the lowest responsible bidder in fact, but because it was the lowest bidder among the union offices competing for the job. The petition proceeds to aver that each of the non-union bidders is the proprietor of a well-established job printing business, with an office ivell supplied with all facilities to do good work of the kind required, and was and is at all times ready, able and willing to do such work. Each is also alleged to be pecuniarily responsible, able to provide the bond required by the ordinances, and is in all respects as able and as well qualified to do and perform said work as are any of the competing union offices, save only .in the right to- attest their printed matter by the use of the union label. Plaintiffs also allege that Ordinance No. 452, as amended by-No. 966, is void and of no effect as an attempt to authorize an unlawful discrimination between bidders of equal qualification and merit, thereby unreasonably restricting competition among bidders, and imposing undue burdens upon the taxpayers of the city. They allege that the council did follow and observe the provisions of said void ordinance in letting the contract in question, whereby the contract, as made, calls for an expenditure
Answering the petition, the defendants say that the contract was let to the Register & Leader Company because it was the lowest responsible bidder for the work; that the use of the union label is a guaranty of the character of the work to which it is attached, aúd. of the skill and labor employed therein, and that said label is copyrighted, but the use thereof is free to all persons who comply with certain reasonable conditions. They also' deny that plaintiffs have any such interest in the matter of said contract for printing the council proceedings as enables them to maintain this action, and allege that the difference in expenditure between the cost of the printing at the contract price and the cost computed on the basis of the lowest bid therefor is only about $120 — a merely nominal sum as compared with the taxable value of property within the city — and that it is therefore impossible that plaintiffs should be irreparably injured because of the alleged wrong or irregularity in the manner of letting the contract. They also deny each and every allegation of the petition imputing to them any' wrongful or unlawful act or purpose in the consideration of the bids or in awarding the work to the successful competitor.
No preliminary injunction was issued, and some six months after the commencement of this action plaintiffs filed an amendment to their petition alleging that during all the time since the filing of the petition the city and the Register & Leader Company have been carrying out the con
I investigated far enough to know that, at the time this resolution was passed, that the company the contract was awarded to used the union label in accordance with the ordinance passed some years ago. That was as far as I went when I determined that the Register & Leader Company was the lowest bidder who used the union label. ■ In addition to that I was fully satisfied that they would do good work. ... I carried my investigation far enough to determine that the Register & Leader Company used the union label, and that was as far as I went. They had done good work- for me. I knew that they were prompt in those things. ... I made no investigation whether the Kenyon Printing Company, the George A. Miller Printing Company, the Homestead, or the Globe Publishing Company could do the work in a prompt and efficient manner.
Mr. Ash having testified that he had inquired as to the kind of work done by the Register & Leader Company, and found that it had a good reputation for promptness and quality of work, further says that the provisions of Ordinance No. 452 were talked of between him and the city clerk, and, while he had no personal knowledge on the subject, he understood that the Kenyon Printing Company, the George A. Miller Printing Company, the Homestead, ■and the Globe Publishing Company were non-union offices.
I ascertained that the Register & Leader Company was the lowest union bidder. In my observation. I have always found that union labor is the best labor that can be obtained for the money, and, consequently, I gave my vote, thinking they would use the best labor. I did not make any inquiry to ascertain whether any of the companies bidding lower than the Register ,& Leader were paying higher wages than the union scale. My idea was to get the best responsible bidder, and get the best work for the money, and get it out in a short time, and my conclusion as to this being the best bid was because union labor supplies the best work.
’ Mr. MeYicar being called to the stand was asked whether the provisions of Ordinance 452, requiring the union label on matter printed by the city, was taken into consideration by the council in awarding the contract, answered: “It was a consideration, but not the only consideration.” On cross-examination he added that the council took into consideration the responsibility of the bidder, its equipment for the work, and its promptness in performing its contracts. It was important that the proceedings be published accurately and promptly and at a reasonable price. These things were of equal or greater importance than union labor. On redirect examination as to his investigation and knowledge,of the ability of the lower bidders, he said:
I had experience with the Kenyon Company when it*418 was a union shop — when it was a reliable firm. Have had no experience with it when it was an open shop. Its bid of ninety-three cents per page was a reasonable price for the work. Had no experience with the Homestead Company and knew nothing to the contrary of their being a reliable shop. Did not know but they were perfectly reliable, efficient and prompt. Had no fact on which to determine that they were not, except they were employing non-union labor.When the George A. Miller Company was a union shop their work was all right. I have no fact on which to conclude that they were not a reputable shop now or on May 7th except their employment of non-union labor. And the same is true of the Kenyon Company. The prior work of the Globe Company had not been acceptable, and it was not properly equipped to handle the work. My experience is that there is a difference in union and non-union printing, and I would give the union shop the preference because I think I would get better work. In awarding the contract I took nothing into consideration except those things I regarded necessary for the best interests of the city, and I think the same considerations controlled the other members of the council.
The fourth councilman, Mr. Schramm, was not a. witness on the trial.
We shall not take time for an extended discussion of this evidence. Considered in the light of all the facts developed on the trial it is impossible to escape the conclusion that, whether Ordinance No. 452 was or was not regarded by the council as of any present force or validity, the nonunion bidders for this work were excluded from the competition, not because they lacked financial responsibility, business facilities, office equipment, experience or reliability, ■but because they employed non-union labor, and the contract was awarded to a higher bidder because it was the lowest among those bidders employing union labor. It may be true that in the absence of union bidders, or possibly in the absence of any competition between union bidders, the council would have felt at liberty to award the contract to a
No attempt is made in argument to uphold the validity of Ordinance No. 452. That it is an unwarranted excess of the legislative power vested in the council is too clear for argument. Government is instituted for the benefit of all the people and not for the benefit of any one class to the exclusion of others. City officials are charged with the collection and disbursement of vast sums of money to which all the people must contribute in proportion to. their estate without regard to social position, political affiliation, re
It is plain that the rule adopted by the board and included in this contract is a discrimination between different classes of citizens and of such a nature as to restrict competition and to increase the cost of work. It is unquestionable that if the Legislature should enact a statute containing the same provision as this contract in regard to any work to be done for boards of education, or if they should*422 by a statute undertake to require this board as an agency of the state to adopt such a rule or insert such a clause in its contracts, or should undertake to authorize it to do so, the provision would be absolutely null and void as in conflict with the Constitution of the state. . . . There seems, however, to be a claim that the board of education, although it could not be lawfully required or authorized to make such a contract may have some sort of discretion so to do, and the only question in the case on the subject is whether the board possesses power beyond that of the Legislature, in which is vested the entire legislative power of the state. . . . There can be no greater power of the board to act of its own motion than by virtue of positive law. The results in either case are equally in conflict with organic law, and such legislation, contract or action, whatever form it may take, is void. Nor can the fact, if it be a fact, that an individual might make such a bargain authorize these officers exercising a public trust to do so. The individual may, if he chooses, give his money away, but the public officer acting as a trustee has no such liberty, and no right to surrender to a committee or to any one else the rights of those for whom he acts. Adams v. Brenan, 177 Ill. 194 (52 N. E. 314, 42 L. R. A. 718, 69 Am. St. Rep. 222).
It is true that in the cited case the discrimination condemned-by the opinion was expressly stipulated for in'the contract, but the principle is no less applicable to a case where the discrimination is actually applied in awarding the contract, for, the right and power to make it being wholly wanting in the Legislature or in the city council, the result is the same, and the action “whatever form it may take, is void.”
For the purposes of this action it may be freely conceded that the council and its members acted in perfect good faith, influenced by the belief that in giving the contract to the lowest union bidder they were in some way serving the best interests of the city, but the question here presented is not one of good faith, but of power and jurisdiction. Undoubtedly there is good authority for the propo
We apply the principle to the case before us the more readily from the fact that the appeal was not submitted to this court for decision before the expiration of the term for which the disputed contract was made. We might perhaps he justified in refusing to pass upon the merits of the controversy, because, by the lapsing of the contract, the dispute over its validity is to a great extent reduced to a discussion of academic propositions. In view, however, of the importance of the case as a precedent we have felt it our duty to ignore that feature. Indeed, we assume that appellant’s motive in bringing the action was not so much to- save the comparatively trifling sum involved in setting aside this contract as it was to have the invalidity of the proceedings