.
WORTHINGTON V. CITY OF BOB'l:ON.
'23
Upon these facts there is no equity in the complainant's case, and nothing which entitles her to favorable consideration at the expense of the defendant. The defendant has not profited by her loss, even if she has sustained any. He acted in good faith in all he did, so far as she and.Fernando Wood were concerned. If he had surmised that she had any interest in the property, facts which appear in the record would have justified him in assuming that his father had full authority to deal with its.!l he pleased. The bill is dismissed, witbcosts.
WORTHINGTON
etal. v.
CITY OF BOSTON.
(Oircuit Oourt, D. L '.
11, 18110.) ,
as.t.Mte.'
'A city 6rdinance, provided that thEl'board make : nO'oontl'act or purchaselDvolvmg an expEmdltura of more tl:1jj,n $10,000 WIthout first adve!ttlsing for bids; . Afterwards the city council PWJsed an order authorizing the board, ,tacexchange cert-ain pumping-engines. HeW,: tllat ,lI>n ex:chanfllmllde without forbids, at an expenditure of mOre tnan'IIO,o.oo,was .Got binding on the CitY,the order not abrogating the terms of the ordinance. · ' Nor-did the fact that the pumping-engines to be proa1U'edin sucli ease were pat,. eD¥- rel,ieve the board froD:). of
,
'
This,'is an action to recOver damages forannlleged breach of oontract, dated?tl.hiy 19,1885. ,By this'contract the plaintiffs were to furriishtwo . fqf, the city of BostQIi the surn. 5.7.5.. city of refused to receive the ground : that the Boston water board, through whomthecOIltJ:lJ.ct was made,·ha;d De Buthority to make anycontrapt involving more than $10,000 without first advertising for proposals, which was not done in this case. It'is " the damagesosustained by the pJ,aintiffs, if is. .Hable on ,the contract, are $35,000. The be under.stoo\,! to sonwportions of the agreed statement f/l.Cts. .T he city of Bostoll was, to 1875, and! since has been, authorized to ',take water from Lake Cochituate, (called,' also, "Long ,Pond,")'Sudbury river, and My,stic lake, aqueducts, dams, lay pipes, establish hydrants, and supply its inhabit'.ants 'wHhwater, in sucb manner., by such agents,' officers, and servants, as city councilshaJ,l from time to time .Qrda.in, appoint, and di,rect, a.nd previous to the year 1875 had established the Cochituate water board' and 'the Mystic water board' to exercise: these powers,subject to the Of the :city. Chapter 80 of the' Statutes of Massa-,chusetts for the Year so jar as it is material.in this case,ia as fol-
At Law.
of
lows: .
'"
' , ' :'
'''The. city council of tbecity of Boston ltJ;lown as the 'Boston Water Board,'
by
a water able and
24
, FEDERAL REPORTER,
vol. 41.
discreet persons, to be appointed by the mayor, with the advice and consent of the ciLycouncil. and to receive such compensation as the city council may from time .to time determine. 'fhe said board may be empowered by said city council to exercise all or any of the powers conferred by the statutes of the comluonwealth upon the city of Boston with reference to supplying said city with water, or of the Cochituate and Mystic wate1' boards, and also to act as the agent of the city of Boston iIi doing any or all things which the city is lIowauthorized.to do in .relation to the taking of lands, water-rights, and other property. allq the esta;blishment and maintenance of works and appliances for supplying the city of Bllston or other cities and towns with pure watel"; * and the said Bostoll water board shall, so far as the city council of said city may by ordinance prescribe. succeed to all the powers and duties formerly vested in said Cochituate water board and Mystic water board."
*
The city counyil of said city, with the approval of the mayor, on the 22d day of Mal'6h, 1876, passed an ordinance, which continued in force until after the. time .of making the contract declared ou, the parts of which material to this case are as follows: . , .. "Tbere shaU;be aboard to be known as the' Boston Water Board/and to consist of three {Ilembers. Said hoard shall have and exercise. all the powers, ·80 far as sueb'{lowers can be legallydelegated by the city council, which were granted to the' Ility/by. or are held by the city under, chapter one hundred and 'sixty-seven ortbe C9mJUonwealth of the Yell,J:EIghteen Hundred and chapter one hundred and seventy-seven of the said utes of the Year Eighteen, Hundred, and and by 01' under any and all statutes in addition to' either of the before-mentioned 'chapters; subject. however, to the authority of the city council, from time to time, byordinances, orders, or resolutions, to instruct said board, and to change and limit their powers. ,Such bpardlDay,"llubject to the approval of the mayor, sellor lease such of the ;connected with the as they de6In expedient, a\lda\l deeds anci, Jeases shall be executed by the mayor, · and countersigned 'bj' the chairman of Said board. No contract oi; purchase · which is estiililitedto invol vean expenditure of more than ten thousand dollars, except a conliJlaot for the layioK of pipe, shall be mllde by the said board · until' theyhaveadveitised, as hereinafter provided, for sealed proposals therefor. When advertislllents for such proposals are made,. plans and specificatipns of the work to be done, and SChedules of the materials or supplies to be .. furnished. shall be placed on file in such otIice as may be designated by said board. and shall at all times during office hours be open to pUblic inspection. The advertiilenltintshall in all cases be inserted not less than five times in ilach of thl'eeneWspape1'S published in the said city/and it may be inserted also, if said: bdard:deern it expedient, in newspapers of other cities or towns, and the lastpul>lication shall be at least one week before the time fixed for ,ppening theproppsals. Each proposal Shall conform to the specifications and ofthe advertisement, shall be inclosed in a sealed envelope addressed to said boal'd, aud shall be accomp:mied by a bond to the city, with suliicientsureties,in such sum. n'ot'less than five h'undred dollars, as said · board may specify in their advertisement, and conditioned to be void if the party maklng.the proposlli shall. in case of the acceptanceoC his bid, sign and deliver to said: qoard, within the time reqllil'ed in their advertisement, a contract for the of the SUbject-matter of his if he shall also, at the time of the delivery of such contract, give afutthl:lr bond, with satisfactory sureties, for the performance of such contract. But, instead of · the befol'&-.mentioned tiOlld. to accompany a proposal, a deposit of money or · other coltateral 'satisfactory to said board may be made as StlCurity for the sign-
WORTHIN.GTON V. CITY OF BOSTON.
25
ing and delivery of the contract, and of the bond for the performance thereof. For the performance of the contract, a bond, with sureties, shall in all cases be required when the contract is signed and delivered. All proposals shall be publicly opened at the time and place designated in the advertisement, and the said board may reject any or all bids which are offered, and it shall be their duty to reject the bids of all irresponsible parties." The Cochituate water department comprises that part of the city waterworks which is employed in supplying the city with water from Lake Cochituate and Sudbury river to Chestnut Hill reservoir, the aqueducts from said sources to, and the pipes supplied from, the reservoir, and the pumps, machinery ,etc. , appurtenant thereto, and for several years prior to 1884 the matter of extending the high-service works of the Cochituate department was before the. city council. In 1881, the Boston water board submitted to the city council an estimate of the cost of such extension, amounting to $743,600. On November 17, 1884, the board submitted to the city council another estimate of the cost of such extension, amounting to '$76.5,600. On December 23, 1884, the following order, duly passed by the city council, was approved by the mayor: "Ordered, that the city treasurer be authorized to borrow, under the direction of thecoUlmittee on finance, and at such a rate of interest as they shall determine, the sum of $766,000, which sum is hereby appropriated. and the Boston water board is authorized to expend the same for the extension of the high-service works of the Cochituate water department." On December 31, 1884, the city engineer, HenryM. Wightman, addressed to the water board a letter, in which he said: "The board should determine the pumping-engine it will use, as such de· termination is necessary before a plan of the pumping station can be made. I am of the opinion that the improved Worthington engine will prove the most advantageous for the city; and as a three million gallon engine of this type is running at the Worthington pump-works in New York, it would be advisable for the board to examine this engine before any decision is made." The water board adopted plans and specifications for said extension, raquiring, among otherthings, two engines of the daily capacity of five million and ten million gallons, respectively, estimated by said board to cost from $85,000 to $93,000, the discontinuance of the pumping station on Elmwood street, at the Highlands, and the engines and machinery therein; and on the 3d day of April, 1885, the Boston water board sent the following communication to the city council: "The plans for the extension of high service, as detailed by ex-City Engineer Joseph P. Davis, and the late city engineer, Henry M. Wightman, reo quire the establishment of a new pumping station at Chestnut Hill, of larger (Japacity than the present one, at the Highlands, and the discontinuance oUhe latter. Mr. Wightman, after a careful examination of the matter, concluded that it would be advantageolls for the city to exchange, if possible, the small ·engines now. in use for the larger ones requirf'd in the extension of the high service, and so recommended to the board. We therefore ask' that the water board be authorized to exchange such pumping engines and machinery as are inadequate, or of insufficient capacity, for those of the capacity required by the plans and estimates of the new high-service extenSion.' " .
26,
T£DERAL REPORTER,
()tiAprU· !aO,'1885, the following order, prepared by the chairman of tpewater had duly passed both branches oHhe city council"was approved oy, tbe mayor: "Ordered, that, the water board be authorized to such pumping engines and machinery as 81'einadequate.or of insufficient capl¥lity, for those of the 'capacity required by the plans and estimates of the new high-service extension; the expense of lloch exchange'tobe charged to the· appropriation for high.service extension."
The' water. board never advertised in any manner for' proposals for contracting for or furnishing the eriginea, boilers, and appurtenances required by the ,plans ahd specifications for the new On April 24, 1885, the board raceivedfroril the plaintiffs a proposal to fumi$h and erect the pumps for $1.06,575, and on the 'same day the board voted to accept, and did the proposal. The distinguishing characteristic ofthe"improved'or high-duty Worthington engine is a patent dhigh-duty" attachment, the patent of which is owned and used exclusi\Tely by the plaintttrs. The plairitiffs, with knowledge of the ordinancehe'reinbefore cited, requiring advertisements, were informed by the chainnan of the ,Boston water board that the order above cited of April 20; 1885, avoided' any necessity of advertising in this case; and on May 19, 1885, the Bt1ston water board, in the name of the defendant, and Claiming to actin its behalf, and whose whole authorityin the premises, if any it had, was' derived from the orders, ordinances, and statutesas,hereitibefore:stated, and the plaintiffs, entered into a contract, the material portions of which were that said plaintiffs should make and erect!lt Chestnut Hill "e&ervoir high-duty pumping-engines,-one of ten million and one of five miUioIl gallons daily capacity,-and the boilersandappurtenancescfor the same; that the defendant should pay the plaii)tiffs therefor the sutn of .106,575; and the pumping machin. ery, boilers, and aU their appurtenances then located in· the Highland pumping station, and valued at $3,500, were to become the property of the plaintiffs. On the same date a bond in the sum of, $25;000, with sureties, running to the city of Boston, was delivered to the Boston water board to secure the faithful performance ofthe contract by the plaintiffs. The bond. was accepted for the city of Boston by the Boston water board, Rnd attached to the contract, and.is now in the possession Qfthe city auditor. In the year 1877, the Boston waterboardllnd. Hj:lnry R. Worthington contracted for an engine; at .R cost of $20,000, without adver. tising:therefor,and the price stipulated therein was paid by said city. A. Ranney and William R: Howland, for plaintiffs. Andrew J. Bailey) City Solr., for defendants. . COLT, J., (ajterstatinytMjacta as 'above.) Upon the foregoing statement of (act!3, the questio ll is presented whether the city' of Boston is liable on the contract made by the with the plaintiffs. On behalf of the ci,tJ) it ,1$ illsisted thatthe powers of the board are'limited by the termsof the :ordinance; that the ordinance requires the board to advertise for proposals where the contract.involves an expenditure of more
WORTHINGTON ". CITY OJ!'· BOSTON.
than $10,000; and that, the board havingnegleeted to do this, the contract n:ade was not the contract of the city, and is not binding upon it. As a general legal proposition, this is sound, and supported by authority. Brady v.Mayor, 20 N. Y. 312; Mayor v. Eschbach, 18 Md. 276; Dibble v. New Haven, 56 Conn. 199, 14 Atl. Rep. 210; The Floyd Acceptances,7 Wall. 666; Bank v. WincheBter, 8 Allen,J09; Palmer v. Haverhill,98 Mass. 487; Petitionaof Eager, 46 N. Y. 100; Pavement 00. v. Painter, 35 Cal. 699; Zottman v. San PrancMco, 20 Cal. 96; Dean v. Oharltonj 23, Wis. 590. Is there anything in the special facts ofthis case to take it out from the operation of the general rule? The contention of the plaintiff'! is that the order of.April 20, 1885, which passed both branches of the city council, and was approved by the mayor, and which authorized the exchange of pumping-engines to be made, gave the board authority to make the exchanges without advertising for proposals. If this were otherwise, it is said that it would have been a foolish and unnecessary act to have passed any such order. It is also pointed out that the ordinance provides that the ,city council may from time to tinile, by order or resolution, instruct the board, and change and limit their powers; and it is claimed that the·' council, acting under this provision, passed the special order of April 20th, with the intention of taking this particular transaction outside of the operation of the general ordinance. This line of argument has some force, but I do not think it should prevail in this case for the following reasons: . ·If we turn to the ordinance, we find that the board may, subject to the approval of the mayor, sell or lease the property connected with the water-works, as they may deem expedient. Here was a case, however, where property was to be exchanged; and the board niightwell say: "While we have the power, subject to the approval of the mayor, to sell or lease the property of the water-works, we have no specific authority conferred on us to exchange such property; and therefore, in order that no question may arise as to our power to act in the premise-s, we will obtain an order from the city council. " It seems to me that the proper construction to give to the. order· of April 20th is that it was passed to supply any possible deficiency in the power of the board to make the proposed exchange, and that it was not designcd as a special ordinance, to be acted upon outside of, and independently of, the provisions of the general ordinance. Upon no sound principle of statutory construction can it be said that the act of April 10th operated to repeal the general ordinance relating to the powers of the board. So far as it changed or repealed the ordinance, it should be held to be operative. SG far as it did not change or repeal the ordinance, its provisions remain in full force and effect. I am, of opinion, therefore, that the act of April 10th was not intended to, and did not, relieve the board from the necessity of advertising for proposals in this case. The second ground upon which the plaintiffs base their right of recovery is that, the Worthington pump being patented, there was no necessity to advertise for proposals. I do not think, howE;lver, that the circumstancethat the Worthington pump embodied an attachment which
FEDERAL REPORTER,
was patented, relie\'ed the board from the necessity of advertising. In the cases referred to by the plaintiffs, (Yarnold v. Oily of Lawrence, 15 Kan. 126; Hobart v. Detroit. 17 Mich. 246; Attorney General v. Detroit, 26 Mich. 263; In re Dugro, 50 N. Y. 513,) we find that an advertisement for bids was made in each instance, except in the case of Yarnold v. Oity of Lawrence, and there the court· held that by the terms of the statute the city was not required to advertise. The form in which this question has usually been presented, and upon which there is a conflict of thority, is whether a city has a right to avail itself of a patented invention in the improvement of its streets, where the law requires the letting of contracts to the lowest. bidder. Upon this question the adjudications are not uniform, as will be seen by comparing the cases ,already cited with the following: Pat'ement (l,o. \'. Painter, 35 Cal. 699; Zottman v. San Pranci8co, 20 Cal. 96; Dean v. Oharlton, 23 Wis. 590; Burgess v. Oity of Jefferson, 21 La Ann. 143. The ground upon which the courts hold that the city has no right to accept a patented article, where the law requires a letting to the lowest bidder, is that the law means that there should be a competition among bidders, and that in the case of a patented invention there is no competition. It is urged by the plaintiffs that by the terms of the ordinance the board were not obliged to accept the lowest bidder; and therefore, having determined upon the Worthington pump, it was useless to advertise for bids·.. However this may be in this particular case, I think it would be a dangerous principle to establish that, because one feature of an article which the city desired was patented, the board thereby can waive the requirement of advertising, and the advantages of publicity,and secretlymake their own selection. Even though a thing may be patented, it may form So subject of competition, because there may be numerouslicenseE's under the patent. The ground upon which I decide against the plaintiffs on this point is that the ordinance obliged the board to advertise Jor proposals, and that it was beyond their power to waive or dispense with this requirement, and thatr therefore the contract which was made, and upon which the plaintiffs rely I was void. Judgment for defendant.·
UNITED STATES V. THOMPSON.
(otrcuit Oount, 8. D. N"w YOTk.
November 00, 1889.)
LA.BoItERS....." ARTISTS "-MILLINERS;
At Law. Action to recover penalty. The defenda.nt employed in France a woman to come to New York and work for him asa· trimmer of hats, and paid her passage to thip