The Hawaiian gazette., 1904-08-09
INJUNCTION
HOLDS GOOD
Contract for Brewers
Wharf Was Not
Lawful.

Court, written by Justice Hatch, the
decree of Judge Robinson is affirmed
in which he granted permanent IN
junction, on the complaint of John Lu-
cas-. against The American Hawaiian
Engineering and Construction Com
pany Limited; c. s. Holloway super
intendent of Public Works, and j. II.
Fisher. Auditor of the Territory kim
ney, McClanahan q Cooper appeared
Tor plaintiff; NJ. f. Prosser, Assistant
Attorney General for Holloway and
Fisher, and Castle & Wilmington for
the Construction Co. Following are the
findings of the court in the syllabus,
together with portions of its reasoning
in the body of the decision:
Allegations in an answer setting up
that the bill was brought to crafty
private vengeance and not in the public
interest. and that plaintiff had threat
ened the institution of this suit unless
certain officers of defendant corporation
should use their influence to cause the
dismissal of another suit pending
against the plaintiff, no unfair advan-
tage having been shown to have been
gained in consequence of the same, held
properly stricken out on exceptions TO
answer"
THE motives of a taxpayer in bring
ing such a suit held not to be the sub
ject of inquiry"
"A taxpayer may maintain bill for
an injunction against a public officer
to restrain him from carrying out an
illegal contract"
"A delay of two months after the
award of a contract before bringing suit
M
opinion says:
THE defense of laches was not set
up in the answers and does not appear
to have been urged before the trial
judge. A very strong showing should
be made in order to have the defense
prevail in the appellate court for the
first time"
ON THE MERITS.
"a contract for the construction of a
wharf and other work, based on specifi-
cations which reserved to the Superin-
tendent of Public Works the right to
use in the new work any piles from
the old work considered suitable, held
TO constitute such an element of un-
certainty as to render intelligent bid
ding and competition impossible, and
the contract itself void
In this connection the following are
portions of the courts observations:
This brings us to consideration of
the merits The first contention ad-
vanced by the plaintiff is that the
original plans and specifications We're
too indefinite to be the basis for COM
petitive bids. The uncertainty claimed
ha ;ult Inv, ba
department to use in the new structure
any of the piles removed from the old
structure. This right being reserved in
the specifications was binding upon all
intending bidders, and they We're obig-
ed to take it into consideration and
make provision against its exercise. 1t
is impossible, however, to see how any
intending bidder could intelligently pro-
vide against the exercise of the right
reserved. Instead of framing a bid for
definite quantity of material and def
mite work, the bidder was faced by con-
ditions purely speculative. The depart
ment did not undertake to say for what
percentage of the new work old piles
could be used. 1t did not commit itself |
TO furnish, or permit the use of, any |
old piles. Yet the menace was always |
of n bidder might be upset by directions |
to take and use old piles. The Assist
ant Superintendent of Public Works, |
Mr.. Rowland testified that at the time |
the original plans and specifications
We're filed it was not known how many |
of the old piles, If any. would be avail
able for use in the new structure, and |
that it was not positively ascertained
hat fl.I 10
they We're pulled up and placed on the
bulknead, which was after the contract
had been awarded Bidders We're thus
left entirely in the dark as to what the
conditions actually would be when the
work was undertaken. The element of |
uncertainty was so great as to render |
definite and exact bidding impossible. |
This tended to prevent competition and |
to defeat the law requiring the call for
tenders. 1t moreover opened the door |
for favoritism and fraud by making 1t |
possible for the Superintendent of Pub
lie Works to give definite assurances
To IA favored bidder as to the number |
of old piles which would be permitted |
to be used in the work; thus enabling |
him to underbid others who might con-
slider il unsafe to bid on any other basis |
than that of new piles for the entire |
work, there being no certainty under |
the specifications that any old ones
could be used Many obvious abuses |
might follow such course of conduct |
ing calls for bids, II II once became |
established AS q precedent II would be |
likely TO defeat entirely the object uf
the law requiring the letting OF public
contracts only after "A call for tenders,
The facts iu the present cuse do not
warrant the slightest imputatiun
against the Superintendent Of Public
Works, he acted In perfect good mith.
Tho uncertainty iu the sp,yiu, ltluns
arose from a desire lo save tn the Ter,
rllnrN ihr value ul tho old pilrs it lhey
had uufi nud lu rriu.H lhr cost uf the
work in hand lU HUt tHr HsaiKsu-
iaHr resulting foW lhe uncertainty m|
ihr HlH lnNHiiuuH u'Nurrui 90 him
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ln iNl'nilnH nlllrIt uU.HUs Heu
ip htbit nn nrN plisa ul iu uHH uu|
allNN Aa'r iHI plN Wl ibwr WWHHri|
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