Delaware state journal. [volume] (Wilmington, Del.) 1870-1883, 1872-09-28
THE CITY in CHANCERY,
The Maoad lmizing Of Fourth strest-Mar-
tin Ksogh vs.. City-Decision in favor Of
the CITY.


Tue following ia the full text Of the
very important drri-iOn of the Chancellor
on the application Of Martin X 'ogh for an
injuncti u rest aiming the City from
awarding to any one c's' c''nt act for
which he was the lowe.t bidder
KEoGH
vs..
THE CITY OF WILMINGTON. y
This Ia q bill for an injunction to re-
strain the corporation of the city of Will
mington from awarding to amy other per-
sou than the complainant, Martin KeOgh,
n contract for tine Merchandising of Fourth
street, and for an order that the contract
be awarded to the complainant upon the
terms Of his bid for il made under certain
proposals advertised by the Street Com
mittee.
The material facts are these: The City
Council, by a resolution adopted June
eth, 1872, directed the Street Committee
To advertise for proposals for paving
Fourth street with Macadamiz0d pave
ment from Market street to the Christians
river. Pursuant to this resolution the
Street Committee did advertise for propo-
sails in the words following; "Bids will
be received by the Street Committee until
Thursday, July 25th, 1872, at 5 O'Clock,
p. m, for preparing the street, furnishing
the material and putting down Macad-
amized pavement on Fourth street from
Market street to the Christlana creek. -
Then follows a detailed specification of
the work and a reservation to the city of
the material now on the street, after which
the advertisement, as il is set forth ia the
bill, concludes with this reservation, viz.
"The right to reject any or all bids is
reserved This Is the advertisement as
contained on the printed handbill from
which the bill Of complaint sets II forth.
In the advertisement as published in two
newspapers there was further reservation
which Ia set forth In the answer in these
words, "No hid will be accepted unless il
be from responsible party" The COM
plainant within due time put in his bid for
the job al the rate of 81 AZ per yard,
which proved to ne the lowest hid, tho
next highest being one by George REM
ington at $l.55 per yard. Nevertheless
the Street Committee in their report of
.he result to the City Council, made Aug.
|, 1877, recommended that the contract
should be awarded, not TO complainant,
hut to Remington, upon the ground stated
in the report, that the complainant had
not the necessary machines for the work,
and further that he already had on hand
city contract which had been unfinished
for ovcra year. With respect to the truth
of the grounds suggested by the Street
Committee for rejecting keogh's bid there
is conflict between the bull and the
answer, but whether they were true or
false is not deemed material TO the
decision of the cause. Il appears
thai the City Council did not act upon the
rna Ia nf Tho Afrnnf Dnrnptiffan
to award the contract to Remington, but
by a resolution adopted Aug. 1h, 1879, il
rejected all the bids and directed that
new ones should he advertised for upon
specifications modified and different from
the former on0s. Under the second adj
vertisement, which limited the time for
proposals to the 5th Of September, bids
have been received which remain unopened
pending this motion,
The case was argued before tho Chan
ccllor on the 18th of September by John
O'Byrne, Esq, for the complainant, Keogh,
and Samuel VI. Harrington, ESD, for the
city. On Saturday, 2lst inst, Chancellor
Bates rendered his decision as follows;-
1t is not claimed on the part of the COM
plainant that a contract between him and
the city for this work was completed by
his putting in the lowest bid under the
original advertisement. Il Is agreed that,
in order to constitute a contract binding Al
law, the bic must be accepted and the con-
tract awarded accordingly. Waat the hill
claims is that the City Council Is bqullahly
bound to award TO him the contract, and
that Court of Equity will enforce this
obligatlon-at least to the extent of re-
slraining the Council from awarding the |
contract TO any other person.
do not fnd sufficient ground for inter- |
fering with the action Of the Council. |
There are several objections;
First Even were IL douptiul whether the |
City Council Would be permitted to prefer |
a higher bidder under the first advertise |
ment viz. Geo. Remington, to the COM
plainant, ii does not appear that II prOpO- |
ses to 10 50. The Council did not adopt |
the recommendation al The Street Oonl- |
mittee, but for reasons sufficient in its |
Judgment and which this Court Is not |
competent TO Oyor-rule, the Council ahan-
doned the original specifications, rel Getting |
as consequence all the bids made under |
the first call for proposals and proceeded |
to advertise for new bids under modified |
specifications. Now, however the right
OF the Council to prefer higher 10 lower
bidder might be questioned, there can be |
no doubt (in the absence Of any statutory |
vi iNhiAtl AtkNlhAlOu " Aht NOuAIdN1 Vi /
the full discretion of any person or cor
poration even ailsr bids for d proposed
work have been received and opened,
either wholly to abandon the work, or TO
alter the plan of 1t, or to change or amend |
the specifications and Issue new ones;
otherwise there would be no protection
against combinations or eXtravagant bid
ding beyond the amount of the cOntempla-
ted e&pendltHre remedy fgr delcits
in the plan Qfthe work ar la tho spepidpa-
ti0ns which the result nf tho biddngs
might disclose. Such u discretion, TO be-
of course, fairly und honestly exercised,
is universally conceded.
A case In New York, decided In 1867,
The People VS.. The Croton Aqueduot
Beard, 40 Barb. Sup. Ct. Rcpts 259, is very
similar to the present There, the Croton
Aqueduct Board advertised for proposals
to build certain works, and received bids,
among others bid from the relator, which
was the lowest, but pp award OF the CON
tract was ilaqe.D Afterwards, the Board
deemed i expedient to alter the plan OF
the work 10 be done and re-adVertlsed for
proposals. In apooTdapue with such altera-
tlans. The Invest bidder under the first
Gall sought his remedy by mapdamus,
which tho Court refused, affirming the
general discretionary power Of parties is-
suing proposals, wlthstanding bids may
have been put In and opened until one
snam,, have been accepted and the contract
awarded. The Court say; 55y !he notice
jasued, they (the Board) did not obligate
lhemselgts 70 award the work 10 thQ lew
est bidder aud | do not understand that
the issuing of proposals alone and OF itself /
created an obligation thus TO dispose Of IL. |
II was a mere notice that bids would he I
received; and If peruhanco they happened /
to be- extrayagant or far beyond the .
amount Of the contemplated expenditure,
think ordinarily there would be discre
tionary power TO reject them altogether"
That case was approved by Brewster J. in |
Virgins vs.. Tue City of Philadelphia,
Brcws. Repts 444. It need only be added
that so long as this discretion TO reject the
original specifications and proceed anew
not Interfere with IL.