The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1866-03-31
LEGAL INTELLIGENCE.
The Street Cleaning COntraot-IpiunC-
tOn Against the City.

| Allison and Judge Pearce. Mckinley ct al vs.
/ The City of Philadelphia, Norton McMichael
/ Mayor, and Joseph r. Lyndall, Controller of the
/ City. Opinion OF the Court Dy Allison p. ].
The complatnants, who are owners of real
estate and tax payers, ask an Injunction to re-
strain the execution of two several agreements
| entered into by the Mayor, on behalf oil the City
OF philadelphia, Tor the cleansing of the streets
/ OF the city for period of five years, under an
ordinance passed the = day of March, 1866.
| The relief asked is threelold:-
| First. That said ordinance may be declared
| to be unlawful.
Second. That the Mayor be enioined from the
| execution of said contracts and be required not
to attix the corporate seal OF the city thereto.
| Third. That Joseph Il. Lyndall, Controller of
| the city, be enjoined from countersigning any
warrant Tor the payment OF moneys required by
the terms OF any contract made in pursuance
| OF the aforesaid ordinance.
The 26th section of the act of 1856 requires
| that all goods merchandise, and any article of
| any kind, and d6or and seTUtce required for the
city OF Philadelphia, IN any department thereof,
| shall be purchased and contracted for only in
such manner as snail be prescribed by ordinance;
| and Tor that purpose the Councils are required
to direct by ordinance the manner and time OF
| making the yearly estimates by the several de-
| partments OF the said city, and of receiving
sealed proposals for such supplies, as aforesaid,
which proposals shau be preceded by advertise
| ment, ana no contract shall be awarded to any
but the lowest bidder who shall give the requi-
site security therefor.
In the case of Comley ct al. vs. the City
philadelphia Reports l94-this section of the
| act was commenced on in considering the ques-
| ton raised by the bill filed by the complainants
in that case. The object of the law, it was said,
| was TO guard against corruption and favor
iteism in the contracts which the city Of neces
| slty is required to make from year to year, for
| its supplies Of labor and Se7'Ujce, as well
as OF various kinds of personal property
Of which 1t is q large consumer. The
| guards thus sought to be thrown around
the public treasury, it established and carried
into effect, as contemplated blythe act, would
| doubtless correct abuses charged to have been
| carried on to an extent which called for reform
| in the disbursements of the moneys of the city.
The Court further says-a broad and liberal
construction should be given to an act whose
| provisions are OF so wholesome character, and
If possible it should be enforced, not only by its
| letter. but also in accordance with its reason
| and spirit.
The contracts now sought to be restrained,
both as to their execution and operation,
hold are covered by the requirements of the act
| Of 1856. They stipulated Tor the furnishing OF
supplies OF labor and service, which are required
| to be performed for "a department of the city of
| Philadelphia; ana they are OF such character,
| that their want is an annually recurring want,
| and therefore covered by the direction of the
| law, that they shall be awarded after an oppor-
| tunlty shall have been afforded to bidders to
| put in sealed proposals for the same, which pro-
| posals shall be preceded by advertisement, and
| the contract by the terms OF the law must be
| awarded to the lowest bidder.
1t is attempted to be set up for answer to this
! conclusion, that the city has complied with the
directions of the act, by the ordinance of March
| =, 1866, out the objection to this answer is
| that the ordinance does not provide tor a yearly
estimate by the Department OF Streets and
Highways or by. the Street Cleaning Depart
| ment of the city, for the furnishing of this ne
cessary supply of labor and service, which can
under no circumstances be dispensed with for a
| single year, and Is therefore capable OF being
| anticipated as an essential and annual want OF
the city, Tor which either department named
| can make yearly estimate, and this Is peremp-
torily required to be done.
But the objection is equally strong, that there
is no pretense even of compliance with the
duty enjoined by the act to advertise for pro.
posals Tor the furnishing of such supply OF
labor and service, and that upon an oppor-
tunity thus offered for competition, the con.
tract has been awarded to the lowest bidder.
Nor ia it set up for answer to the prayer OF the
bill, that competition for the cleansing OF the
streets was afforded to any one by advertise
ment or otherwise, The ordinance of March -,
1866 empowers the Mayor to enter into con
tracts with competent persons for the removal
of all dirt ETC.. from the streets for five years, at
a rate OF charge not exceeding ninety-hve thou
sand dollars per annum.
the restrictions contained in the ordinance, Ii
referred to the judgment and discretion OF the
Mayor. 1t would be difficult to conceive OF
more palpable disregard OF the clear and posi-
tive command OF theRct of 1856. Nor is IT sutfi
! Gent answer to say, that this discretion has
| been honestly and iudicously exercised; this
| no one thinks of calling in question. The
confidence reposed by Councils in the Mayor
well-established character for integrity anc
ability, but this only makes departure iron
the protection which IS sought to be thrown
| around the public interests the more dangerous
as a precedent, and requires us to do that which
under the circumstances we regret to be com
| PEELED to perform. ,
The Importance of prompt provision for thu
cleansing of the highways Of the city, in view
the near approach of warm weather, OF th'
now Objectionable condition OF many OF oul
streets, and of the impending cloud when ma
been drawing near to us, charged with pesu
leRce and with death, are most serious ana Inn
portant considerations, to which we are not 20
sensible. But our duty yet remalns-to oeclar'
the law as we believe and understand 1t TO oe
and as it has been invoked at our hands. w
have no other alternative allowed TO us puI
grant the Injunction prayed for.
The following opinions we're also delivered D.
the President Judge:-Estate OF John I. CLARK
Exceptions TO auditors report. EXcepVloh
| dismissed and report confirmed. i,
Charles Bard's Estate. Exceptions TO aud
| tors report Exceptions sustained and repor
referred back to auditor, with instructions I
correct his report by charging the accountan
| with the AMOUNT claimed by exceptants.
Uber vs.. 'Hickson Clemens. Oertlorar
Judgment reversed.
4 reversed.
skelton VS.. Mason. Certiorar. Judgment r.
l Versed
Cook vs. McDevitt. Certiorar. Judgment n
| versed.
| ment reversed.
Beulah VS.. Beulah. divorce. report OF n
| aminer affirmed.
9 Cary VS. Cary. Divorce. Report of Exam
iner affirmed.
sCoURT OF QUARTER sEssIoNs-Judge Ludlow