Delaware state journal. [volume] (Wilmington, Del.) 1870-1883, 1872-09-28

view the reasons of Its action further than
10 see that the discretion Is fairly and hon
ostly exercised. The good faith and hon
esty of the Councll in this business stands
unimpeached upon the record of the cause.
But in the next place there is a feature
of this case which puts beyond all question
the right of the City Council to reject
Keogh's bid and even to have preferred n
higher bid under the original advertise
ment. His bid was made subject to an
express reservation TO the Council of the
right "to reject any or all bids" under
that advertisement. lie must be taken by
the very act of bidding under that adver-
tisement to have consented to this reserved
right. The reservation qualities his bid,
giving 1t precisely the same effect as If in
terms he had said to the Council, q" pro-
pose to do the work for so much, provided
you see fit to give me the job.' His accep-
tance of the terms of the advertisement
concludes him. Nor can he now, after
having accepted the terms Of the adver-
tisement, 20 behind It and raise the ques-
tiOn whether the reservation 10y the Street
Committee was or was not in conflict with
the city ordinance of May 18Th, 1870, pro-
viding that contracts Of certain kinds
should be given out to the lowest bidder or
bidders, etc. The ordnance is not a pro-
vision of the charter nor y statute II is not
a law, obligatory upon the City Council
and all concerned, but it is merely a direc-
tion from the Council 10 It's agents-to''tho
officer or committee having such business
In charge'-upon a subject resting wholly
In its discretion; and any departure from
the terms of the ordinance in particular
case the Council may, if it see 1T, sanction
or adopt, quite as etlectually as il might
have, ,ordered such exceptional proceeding
In advance. The question whether the
ordinance has been strictly followed Is
one between the Council and its officer or
Committee, and does not concern the bid
der. His lcquiescence in the reserved
right, by bidding subject TO it, concludes
him.
This case does not raise the broad ques-
tion whether the City Council, hring
uncontrolled ON this subject by any statue
or by its charter, may not in all eases,
even without reserving the right reject the
lowest bid put in under an advertisement
for proposals and, award the contract to
higher bidder, acting Of course with good
faith to the public interest. On that point
an opinion is unnecessary, and would be
extrajudicial and improper.
One other subject remains TO be eXam-
ined. The complainant, 10y an amendment
to his bill, alleges that he is citizen of
Wilmington and tax payer, and in that
character he socks the Injunction as a
measure Of protection to the public interest
against the additional expense aud in
creased taxation which may result from
the action of the City Connel,
! waive tho question raised Ia argument
as to who are proper parties to institute
legal proceedings for the correction of
abuses or breaches Of trust by municipal
corporations. and will treat the case, under
this branch, as properly before me. Both
counsel, at the conclusion, desired that
the motion be disposed Of upon its merits,
free from technical objections.
1t will only be necessary on this point
to define the limit Of judicial interference
with the discretionary powers vested by
the Legislature in municipal corpora
tlons or their officers. The precise limit
take TO be this that the Courts may in
terpose so far rs to protect private rights
when violated or threatened by the action
of these bodies, also to restain them from
the assumption of powers not granted by
their charters, and further, to guard
the public interests against any corrupt or
fraudulent abuse of the powers granted
to them. But where no private right Is
infringed and the City Corporation or its
officers are exercising their discretion in
good faith, the court will not revise the
grounds of their proceedings nor entertain
the suggestion that their action is mex
pedient for the public interest. This is q
plain rule, easy of application, reasonably
safe for the public withOu, neodlessly
trammelling the bodies or officers in whom
discretionary powers are vested and il is
also rule well settled by judicial author
ity. People Us. Nc,r York - BarboWr s. G.
u. 1863 People aim F7agg rs. Lo'oJer,
Ab5ots r., III; /; Reg,olds rs. Mayor Of
Albany S Barbour, S. e., II. 591 Ne
Ld'tghliR vs.. RnsGss, INld. Il. G34, aim
Wiqgigls rs. Ihila. . Breusfer, q. 44i.
To apply the principle TO this ease -
The paying of streets in the city of Will |
mngton, together with a large hody of |
other enumerated powers, is by the 27th |
Sec. of the City Charter vested in the City |
Council. II is q discretionary power, aud |
is cOniidad without any expressed rostric- |
tion whatever. Much argument Was d- |
rected to show that the authority exercised |
for the paving of streets is not legislative
or political, but is trust, in the strict
and proper sense, for the management and
disposal of the property of the citizeps, |
and is subject to the same rules which
govern the ordinary responsibility OF trus-
tees. BE it 30. Tho distinction Is not
material to this case. Either way, whether
considered as IN act of legislation or as
the exercise of a trust in the strictcst sense,
the power in question is essentially discre-
tionary. A large discretion must run
through all the details Of its cXeic else, such
as the devising of suitable plans for the
work, the adopting of specifications and
giving out of contracts and the raising Of
means to pay the expenditure.
The action of the Council mnw drawn
into question is its abandoning tho origi-
nal specifications fmacadamlniug Fourth
street, rejecting the bids put in under the
first call, adopting new specifications aud
receiving bids under them. Now as hasbeen
Just decided, this proceeding violated no
right, legal or equitable, of Mr.. Kcogh, as
a bidder and so far as II may concern the
public interest, there is no suggestion OF
had fai,b or corruption m the action of
the city Council. Il appears to have been
an honest exercise of discretion in a sub
lect matter coniided to the Council by the
charter, and with which, whether il were
well or IN Judged for the interests OF tho
city, the Courts have no authority To in
terfere.
Where a discretionary power conferred
by charter Is found To be- too large, or is at
any point specially liable to abuse, il is for
the Legislature To provide proper lim-
tations or checks. So far rs the public
welfare In these matters depends upon the
personal qualifications Of city officers, the
remedy is in the hands of the citizens ut
the elections. The Courts,as before stated,
can interpose only when necessary 10 pro-
Iect private rights, or To restrain tle
of powers not grap,Id ~ Che
charter or ihl l,auduluut or corrupt abuse
Of powers granted.
The motion for m Injunction must he
denied and the bill dismissed.
Foreign Lecturers.
What a cataract of lectures Of Curetgn
VIZ agN t. hav, during the
naming saasan 1hcy arc To he given
chiefly by literary people. Il sreuis. There
aru Fr0udo, Macdonald, Yates, and Emily
Faithful for the new stars. Here Is Miss
Faithful alone bringing list Of no less
than fifteen discourses on all sorts OF nice
subjects, from the English Aristocrcy to
Ihe Education of Women. Miss Faithful
Is said tn he an extremely practical woman
10 whom feminine sell.support seems .ol