Interstate Vitrified Brick & Paving Co. v. Philadelphia, Mack Paving Co.

Opinion by Mb. Justice Fell, The learned judge of the common pleas, upon the hearing of the application for a preliminary injunction, distinctly found that the Director of the Department of Public Works of the City of Philadelphia “ had acted for what he considered the best interests of the city ” in awarding the contract for paving to the Mack Paving Company. A careful examination of the testimony has satisfied us that this finding was correct. There was no allegation, in the bill, nor any attempt in the testimony, to show that this officer acted in bad faith ; and throughout the whole proceeding his entire honesty of purpose and his thorough integrity seem to have been conceded. There then remained but one question, and that related to the power of the director under the act of May 23,1874. The decree is based upon the opinion that the director had no alternative but to award the contract “ to the lowest bidder who is able pecuniarily to carry out his contract.” This was a misconception of the law as it has been repeatedly announced by this court. The construction of the act of 1874 was first before this court in 1876 in the case of Commonwealth ex rel. Snyder v. Mitchell, 82 Pa. 343, and it was there distinctly held that the word “responsible” as used in the 6th section meant more than the [480] pecuniary ability of the bidder to carry out the contract, or to be answerable in damages for its breach, or to enter security for its performance; and that the act vested in the officer whose duty it was to award the contract a discretion, and that his-powers were not merely ministerial. This case was followed in the same year by Findley v. Pittsburg, 82 Pa. 351, in which the same view of the act was stated. The question again arose-in 1885 in Douglass v. The Commonwealth ex rel. Senior, 108 Pa. 559, and it was there said by Mercur, C. J.: “ The act of 23d May, 1874, directing contracts to be awarded to the ‘ lowest responsible bidder ’ has twice been before us for construction. In each it was held that the word ‘ responsible ’ as used in the act applies not to pecuniary ability only, but also to judgment and skill. The duties thereby imposed on the city authorities are not merely ministerial, limited to ascertaining whose bid was the lowest, and the pecuniary responsibility of the bidder and his sureties. The act calls for the exercise of' duties which are deliberative and discretionary.” This doctrine was re-affirmed in 1891 in The American Paving Co. v. Wagner, 139 Pa. 623. It therefore follows that under the findings of fact by the learned judge there was but one conclusion that was in harmony with the decided cases. The decree of July 9,1894, granting an injunction, is reversed and set aside, and the injunction dissolved at the cost of the. appellee. Mr. Justice Williams dissented. ATKINSON ET AL. V. PHILA. ET AL., APPELLANTS. Opinion by Mr. Justice Fell, Oct. 29, 1894: This case was argued with Interstate Vitrified Brick Co. v. The City of Philadelphia, No. 200 July Term, 1894, in which the opinion of this Court has been filed. It presents the same questions that were considered and decided in that case. The decree of-July 9, 1894, is reversed and set aside, and the injunction is dissolved at the cost of the appellees. Mr. Justice Williams dissented.