Worthington v. City of Boston

41 F. 23 | U.S. Circuit Court for the District of Massachusetts | 1890

Colt, J.,

(after stating the facts as above.) Upon the foregoing statement facts, the question is presented whether the city of Boston is liable on the contract made by the water board with the plaintiffs. On behalf of the city, it is insisted that'the powers of the board are limited by the terms of the'ordinance; that the ordinance requires the board to advertise for proposals where the contract involves an expenditure of more than $10,000; and that, the board having neglected to do this, the contract made was not the contract of the city, and is not binding upon it. As a general legal proposition, this is sound, and supported by authority. Brady v. Mayor, 20 N. Y. 312; Mayor v. Eschbach, 18 Md. 276; Dibble v. New Haven, 56 Conn. 199, 14 Atl. Rep. 210; The Floyd Acceptances, 7 Wall. 666; Bank v. Winchester, 8 Allen, 109; Palmer v. Haverhill, 98 Mass. 487; Petitions of Eager, 46 N. Y. 100; Pavement Co. v. Painter, 35 Cal. 699; Zottman v. San Francisco, 20 Cal. 96; Dean v. Charlton, 23 Wis. 590.

Is there anything ill the special facts of this case to take it out from the operation of the general rule? The contention of the plaintiffs is that the order of April 20, 1885, which passed both branches of the city council, and was approved by the mayor, and which authorized the exchange of pumping-engines to be made, gave the board authority to make the exchanges without advertising for proposals. If this were otherwise, it is said that it would have been a foolish and unnecessary act to have passed any such order. It is also pointed out that the ordinance provides that the city council may from time to time, by order or resolution, instruct the hoard, and change and limit their powers; and it is claimed that the council, acting under this provision, passed the special order of April 20th, with the intention of taking this particular transaction outside of the operation of the general ordinance. This line of argument has some force, but I do not think it should prevail in this case for the following reasons: If we turn to the ordinance, we find that the board may, subject to the approval of the mayor, sell or lease the property connected with the water-works, as they may deem expedient. Here was a case, however, where property was to be exchanged; and the board might well say: “While we have the power, subject to the approval of the mayor, to sell or lease the property of the water-works, we have no specific authority conferred on us to exchange such property; and therefore, in order that no question may arise as to our power to act in the premises, we will obtain an order from the city council.” It seems to mo that the proper construction to give to the order of April 20th is that it was passed to supply any possible deficiency in the power of the board to make the proposed exchange, and that it was not designed as a special ordinance, to bo acted upon outside of, and independently of, the provisions of the general ordinance. Upon no sound principle of statutory construction can it be said that the act of April 10th operated to repeal the general ordinance relating lo the powers of the board. So far as it changed or repealed the ordinance, it should be held to be operative. So far as it did not change or repeal the ordinance, its provisions remain in full force and effect. I am of opinion, therefore, that the act of April 10th ivas not intended to, and did not, relieve the board from the necessity of advertising for proposals in this case.

The second ground upon which the plaintiffs base their right of recovery is that, the Worthington pump being patented, there was no necessity to advertise for proposals. I do not think, however, that the circumstance that the Worthington pump embodied an attachment which was patented, relieved the board from the necessity of advertising. In the cases referred to by the plaintiffs, (Yarnold v. City of Lawrence, 15 Kan. 126; Hobart v. Detroit, 17 Mich. 246; Attorney General v. Detroit, 26 Mich. 263; In re Dugro, 50 N. Y. 513,) we find that an advertisement for bids was made in each instance, except in the case of Yarnold v. City of Lawrence, and there the court held that by the terms of the statute the city was not required to advertise. The form in which this question has usually been presented, and upon which there is a conflict of aur thority, is whether a city has a right to avail itself of a patented invention in the improvement of its streets, where the law requires the letting of contracts to the lowest bidder. Upon this question the adjudications are not uniform, as will be seen by comparing the cases already cited with the following: Pavement Co. v. Painter, 35 Cal. 699; Zottman v. San Francisco, 20 Cal. 96; Dean v. Charlton, 23 Wis. 590; Burgess v. City of Jefferson, 21 La Ann. 143. The ground upon-which the courts hold that the city has no right to accept a patented article, where the law requires a letting to the lowest bidder, is that the law means that there should be a competition among bidders, and that in the case of a patented invention there is no competition. r '

. It is urged by the plaintiffs that by the terms of the ordinance the board were not obliged to accept the lowest bidder; and therefore, having determined upon the Worthington pump, it was useless to advertise for bids. However this may be in this particular case, I think it would be a dangerous principle to establish that, because one feature of an article which the city desired was patented, the board thereby can waive the requirement of advertising, and the advantages of publicity, and secretly make their own selection. Even though a thing may be patented, it may form a subject of competition, because there may be numerous licensees under the patent. The. ground upon which I decide against the plaintiffs on this point is that the ordinance obliged the board to advertise for proposals, and that it was beyond their power to waive or dispense with this requirement, and that therefore the contract which was made, and Upon which the plaintiffs rely, was void. Judgment for defendant.