Cope v. Hastings

Opinion by Mr. Justice Mitchell, By the Act of April 14, 1897, P. L. 19, the respondents were appointed commissioners to erect a new state capitol at Harris — 316 — burg. Tbe location, upon or near tbe site of the old capitol, the colonial style of architecture, and the cost, not to exceed $550,000, were fixed by the act, and were mandatory upon the commissioners and every one dealing with them. So, to a lesser extent was the fire proof character of the building, but everything else was left to the discretion of the commissioners under the general direction that the building should “ in their judgment be adapted to the present and future use of the General Assenibty, its officers, committees and employees.” The commissioners were further directed “ with the least possible delay, to advise with and employ an architect and adopt plans,” etc. Under this act the commissioners engaged an architect to assist them as “professional adviser,” and issued what has been known as the programme, under which this suit arises. Its provisions will be examined more in detail hereafter. For the present it is enough to say that three disinterested architects were selected as a board of experts to whom all plans were submitted anonymously, with the assurance to those competing that all the plans submitted would have full consideration, that the board would recommend eight designs, out of which the commissioners agreed to select one, whose author should be appointed architect “ to design and supervise the erection ” of the building, and two others whose authors should receive first and second medals respectively. The programme further contained elaborate provisions for the competition, the selection, and technical details of the requirements of the building, etc. not necessary for us to dwell upon. Thirty designs were submitted, out of which the board of experts selected eight which they reported to the commissioners, with a recommendation as to their relative excellence. The board also reported that “ in the matter of cost, all the designs submitted .... would exceed the appropriation” unless the materials used and the character of the workmanship were to be unworthy of the capitol of the commonwealth. The board further reported that two of the designs submitted bad been excluded from the competition for violation of the directions of the programme, one because trees were shown in one of the drawings, and the other because all the elevations in the drawing were not rendered in monotone. The commissioners upon the receipt of this report, and also — 317 — of complaint as to the exclusion of the two designs as above noted, disapproved the action of the board of experts, and by resolution reciting the facts canceled and set aside the competition under the programme, ordered all the designs to be returned to the authors, and invited the submission to the commissioners of new plans by all the competing architects. On this action of the commissioners the complainants filed the present bill, averring that they had entered the competition by preparing and submitting plans in accordance with the pro-gramme, and “ that the action of the commissioners in thus disregarding the obligations of said programme, and in annulling the provisions of the same, is a violation of the obligations assumed thereunder by the commissioners to your orators, and will result in depriving your orators of the opportunity of securing one of the prizes therein provided for.” This is the canse of action and the averment of damage, in the complainants’ own language, and it will be seen at once that it is radically defective in setting out at most no tiling further tlian a mere contingent riglit, without the averment of the happening of the contingency on which the right will arise. It asks the court to compel the commissioners to award the prizes to three of the eight preferred designs, but does not say that complainants’ designs were among the eight. If the relief asked were granted there is nothing to show that complainants would be in any way benefited by it. Courts of equity are not set in motion upon speculative contingencies. In strict practice, therefore, the bill should be dismissed, on this ground alone. But as there are questions of public interest involved we prefer to consider the case further, and if the hill is otherwise sustainable, to allow an amendment on this point, especially in view of the pendency of another bill by a different complainant, in which this defect does not occur. The bill and complainants’ case are based on the view that the programme contemplates only the selection of an architect and not a plan. It is admitted that the selection of a plan must rest in tbe discretion of the commissioners, but it is argued that the choice of an architect Avas, by tbe action of tbe commissioners in issuing tbe programme, made a preliminary step, as to whicli tbey bound themselves to abide by tbe report of the experts, and that such action Avas not a delegation of discretion as — 318 — to a plan but a mere means of informing themselves as to a class of architects from whom the selection could best be made. This brings us to.the examination of the programme, and it must be conceded that some of the expressions look towards the complainants’ view. Thus it is entitled “Programme of a Competition for the Selection of an Architect for a new Capitol Building.” Section 5 of part I., states that “ the object of the commissioners in instituting this competition is to select and appoint an architect to design and supervise ” the building. Section 7 provides that “ the prize of this competition is the award of a commission to design and supervise the erection” of the building; and some other expressions tend the same way though less strongly. On the other hand by section 1, of part I., all American architects are invited “ to submit drawings in competition ; ” by section 4, “ all draw ings with accompanying description .... will have full consideration; ” by section 10, the advice of the board of experts was to be “ upon the relative merits of the designs submitted; ” by various sections of part II., the board of experts are to select “ those eight designs which in their judganent are best;” the “selection of designs will be governed by the merit of each design as a whole ; ” it is “ the designs so selected ” which are to be reported to the commissioners, who are then to select “ one of-the said designs as being in their opinion the most satisfactory ; ” and other sections bearing in the same direction. The view of the appellants would require us to hold that these reiterated provisions as to the drawings and plans had no reference to the merits of the plans themselves as means of obtaining the best building, but only intended them as evidence from which to judge of the ability of the authors as architects, and left the subject of plans for the actual building entirely open for future and separate consideration. That the elaborate scheme, so advertised as to bring in thirty competitors from all parts of the United States, each preparing twenty-four large and laborious drawings, should be intended only as a preliminary skirmish for the appointment of an architect, to be followed by another and separate contest for a plan, the thing with which the real interest of the state is concerned, is not only unusual and startling, but in the highest degree unbusinesslike. Under it the author of the best plan might be a youth just through his professional studies, of great artistic — 319 — ability, but without the practical experience of ever having built a single bouse. Indeed tlie programme itself foresees and provides for this very contingency. By section 24 of part II., “ If by reason of youth or inexperience or for any other reason, the architect chosen as above provided shall, in the judgment of the commissioners, be an unsuitable person to be placed in charge of this work, be shall, at the request of the commissioners, associate with himself in the performance of his duties an architect who shall be acceptable to the commissioners, and sucb associated architect shall be paid a portion of the fee,” etc. A construction which would thus seem to provide a method for the selection of an architect only, and then at the same time provide in express terms for the contingency that the method might lead to the selection of an unsuitable person, so obviousty stultifies tbe wliole programme, that it should not be adopted unless tbe language used admits of no more sensible construction. There is no compulsion to adopt such a view. On the contrary it is opposed not only by the clauses already cited but also by tbe whole scope and object of tbo programme. What the state wants, and the act of assembly commanded, was a building. That was the sole object in view. Tbe architect and the plans are only means to that end, and the selection of the architect is not the first step in importance, nor necessarily in order of time. This is already shown by the provision for an associated architect. But the adoption of a plan as well as the selection of an architect is demonstrated in the next section, 25 : “ The architect so appointed shall then revise his competitive drawings to meet the further requirements of tlie commissioners, and upon the basis of these revised preliminary drawings shall prepare fully detailed working drawings and specifications of the Legislative Building, and shall during its construction supervise tbe work,” etc. What possible purpose can be attributed to the command to prepare “ fully detailed working drawings and specifications ” according to his plan, and to proceed with the construction, if his plan has not been adopted? Much stress was laid in the argument by appellants upon the expressions in tbe programme already quoted, that the object of the competition was to select an architect “(o design and supervise,” etc.: that the prize was a commission “ to design and — 320 — supervise,” etc., and other like uses of the word design. But this section shows that the designing meant was that which was done for the competition and not afterwards. All difficulty is avoided by this construction. The prize is truly stated as a “ commission to design and supervise ” the construction of the building, for that is the appointment which carries with it the very considerable sum of five per cent upon the cost of the building, much more, probably, than would be paid for the design alone. The best design having been selected, its author was to be the architect, not to make a new design which might not be equal to the first, and not to supervise the building on another’s plan, but on his own; and if notwithstanding the merits of his plan he was likely to fall short in practical ability he was to have an associate. This view does away with the self condemning features of the programme and makes it sensible and consistent throughout.. The plan of the successful architect was to be revised, and this was the real object of all the provisions sought to be construed as looking to a separate selection of architect and plan. The best plan was to be selected and adopted, and treated as evidence of the capacity of the architect for doing the work, but the adoption was not to be absolute in either aspect. The architect might be required to take an associate of more experience, and his plan was to be open to revision upon suggestions by the commissioners. The incorporation of ideas from other plans was provided for in section 35 with the consent of the authors and upon compensation. But, with an associate or without one the author of the plan selected as best was to be the architect of the building, and with revision or without it his plan was the one to be put into working drawings and constructed. Considered as a whole and with regard to its purpose and the circumstances of its issue, the programme does not admit of any other rational construction. We come now' to the action of the hoard of experts and of the commissioners. As already said, the experts reported that all the plans would exceed the limit of the appropriation and would require modification or the use of inferior materials and workmanship. They also reported that they had felt constrained to exclude two designs from the competition “ for serious violation of clauses well defined in the programme,” to wit: No. 15, — 321 — because of “ trees being shown on the elevation at one sixty-fourth scale, and their shadows shown on the plan at same scale,” and No. 21 because of “all the elevations and sections not being rendered in monotone, at least three colors being used.” This action by a board of professional gentlemen of such high character and intelligence can only be accounted for by their erroneous view of the scope of the programme as limiting their duties to the selection of an architect. The two plans excluded, it is true, violated the plain conditions of the competition, and the authors have no ground of complaint, for they were bound to know the risk of departures from the programme. But the violation was of requirements that affected only the drawings, and did not touch the merits of the designs, but only the work of the experts in estimating them relatively to the others. When therefore the experts enforced the conditions so relentlessly against two minor offenders, it was not to be expected that they would overlook violations that went to the very substance of the plans themselves. Yet each of the eight recommended exceeded in cost the amount of the appropriation, and this was the most important and mandatory requirement, not only of the programme, but of the statute itself. It is no answer to say that the designs could be modified to bring them within the necessary limit. Distinct notice was given in section 1 of the programme of the amount of the appropriation available and “in order to permit uniformity in estimating the probable actual cost of the building,” the preliminary expenses of the competition, to be deducted from the gross appropriation, were assumed to be $10,000. And in the supplement to the programme it was again explicitly reiterated that “ the provisions limiting the cost and specifying the areas required are mandatory, and will be strictly and fully observed in judging the designs.” The nature and extent of modification necessary to produce the required reduction of cost are peculiarly matters of technical knowledge on which however the experts gave the commissioners no assistance. And if modifications were permissible at all, prior to the selection of a design, it would seem that mere corrections of the drawings should more readily be allowed than modification of the substance of the plans. The commissioners therefore had a right to be dissatisfied with the action of the board of experts, and in setting aside all the com — 322 — petitive designs and reopening the whole competition they were not only within their powers but were doing merely what the board of experts as a matter of strict right should have advised. It is much to be regretted that a scheme so carefully prepared and so well intended should result in failure. But the responsibility does not rest upon the commissioners. Primarily it is the fault of the competing architects who disregarded the most important and mandatory requirement of the whole scheme, which even the commissioners themselves were not at liberty to depart from, and secondarily, in a lesser degree, of the board of experts who neither enforced the conditions strictly against all competitors, nor gave the commissioners the necessary information to enable them to judge how far the departures from the programme could safely be excused and remedied. These views necessarily put an end to all claims for relief under this bill, but as some other points of importance have been argued we proceed to notice them, although briefly. The commissioners are invested by the statute with a discretion on the subject-matter which cannot be controlled or reviewed by the courts or parted with by the commissioners themselves. The law is not disputed that delegated authority requiring the exercise of the personal discretion and judgment of the agent cannot be delegated by him. We think it quite clear that if the appellants’ construction of the programme should be adopted, and the commissioners be held to have bound themselves to limit their choice of an architect to one of the authors of the eight plans recommended by the board of experts it would be an illegal delegation of their discretion. It is urged that so long as the commissioners retained the ultimate right and power of selection, they might take any steps they thought proper to secure a class of competent persons from whom to select. The argument is entirely sound so long as it is applied to the voluntary action of the commissioners. If they had selected one of the class, no other outside of the class could object that their action was illegal by reason of delegation of authority to select the class. They might voluntarily or in the exercise of their discretion limit their choice to one of eight, chosen by others as most competent, but they could not bind themselves to do so. The discretion which was free at first must remain free to the last or up to the time of final judgment and action. — 323 — A further objection to the bill is that it is virtually against the state. The defendants have no personal interests in the matter. They are clothed with authority as agents of the state, and their acts which are made the basis of the bill were done by virtue of their office only. Three of them, a majority, are named in the act by their office only. The building is upon ground of the state, and is to be built and paid for by the state. An injunction concerning it in any way would not affect the commissioners in their personal capacities but only as the officers of the state, and through them the state itself. It is not charged tbat they are acting against the law, but against private rights growing out of their own previous action. The state cannot be interfered with on such grounds. On the whole case our conclusions may be summed up as follows : First. Complainants have shown no interest in the subject-matter entitling them to relief. Second. By the bill and the attached report of the board of experts it appears that complainants violated the terms of the competition, and were therefore not entitled to be considered in the selection. >. Third. The action of the commissioners complained of was not illegal, but was justified under the terms of the programme. Fourth. Even if the action of the commissioners had been in disregard of the programme they could not bind themselves so as to delegate their discretion or limit their final judgment. Fifth. The state being the real party in interest as defendant, and its officers not being alleged to be acting in violation of the law which created their authority, the courts are without jurisdiction of the subject-matter. Decree affirmed.