Commonwealth ex rel. Snyder v. Mitchell

Mr. Justice Gordon

delivered the opinion of the court, November 6th 1876.

This is a petition by Nicholas Snyder et at, members of the firm of N. Snyder & Co., for a writ of mandamus against the Water-Committee of Councils of the city of Pittsburgh. The petition set forth, inter alia, that the committee, having in charge the erection of water-works for the aforesaid city, did, sometime during the year 1874, invite sealed proposals for the construction and delivery, in place of certain “wrought-iron forcing mains;” that the relators, “expert and responsible iron-workers,’’among others did deliver to the said commissioners, sealed proposals for the manufacture and delivery of the proposed work, and that the bid therein contained was lower by some $5000 than that of any other bidder; that said proposals and bid were accompanied by a bond, in due form, as security for the proper execution of the Avork designated signed by two responsible sureties ; that, notwithstanding these facts, the said water commissioners awarded the contract to the firm of J. M. Brush & Co., at a higher bid than that of the relators, thus unjustly and unlawfully passing by and refusing to accept their bid. The answer of the defendants admits the facts as set forth in the petition, but denies the responsibility of Snyder & Co., and their competency and ability to perform the proposed work and to' fulfil the required contract. It also sets out and specifies the facts on Avhich these allegations are based, as-follows: “That it is within the knowledge and full belief of the said committee that N. Snyder & Co., by some means or other, attempted and did perpetrate a gross deceit and wrong upon said committee, in surreptitiously departing from the specifications for a certain contract for the construction of boilers for the new water-works, by striking therefrom, without the knowledge or consent of said committee, the words ‘ mud drums,’ Avhereby said committee have suffered considerable vexation and annoyance, and whereby said city will, in all probability, be compelled to litigate Avith the said N. Snyder & Go., resulting in considerable loss to said city; that it is within the knowledge of some, if not all of the members of the water committee, that N. Snyder, the senior member of the firm of N. Snyder & Co., was a man of intemperate habits, whose character for sobriety was not such as would warrant the committee in giving said firm such a responsible contract; that said N. Snyder also had attempted to bribe the mechanical engineer of the water-works, Avho was, by virtue of his office, the inspecting officer of said contract; and that said N. Snyder & Co. were otherwise disqualified for the proper fulfilment of the requirements of the proposed contract.” The learned judge who, as the mouth-piece of the court to which this case was submitted, under the provisions of the Act of April 22d 1874, deliv-. ers the opinion, finds that the facts stated in the petition are true, and that the allegations contained in the answer, as above set forth, are wholly without foundation, but' that,- notwithstanding this, the committee fully believed that what was asserted in the answer was true. We must take this opinion of the court as to the belief of the respondents to be correct, not only because we are bound by this finding, as though it were that of a jury, but because we cannot suppose the gentlemen composing the committee would state anything that they did not believe; nevertheless, it does somewhat surprise us, that this body of men, intrusted with so important a duty, should have rested so contentedly under a delusion which a little inquiry in the right direction would have dissipated, and thus saved a handsome sum of money to the city treasury.

The facts, as above stated, having been found in favor of the relators, we next have to consider the Act of Assembly under which this case arises. It reads thus: “ All stationery, printing, paper and fuel used in the councils and in other departments of the city government, and all work and materials required by the city, shall He furnished and the printing and all other kinds of work to be done for the city, shall be performed under contract to be given to the lowest responsible bidder, under such regulations as shall be prescribed by ordinance.” (Act 23d May 1874, Pamph. L. 280.) Now the court below, though they found, under the evidence, that the relators were responsible in all points in which the city had a right to inquire, yet they held that the word “ responsible,” as employed in the act, when applied to contracts, requiring for their execution, not only pecuniary ability, but also judgment and skill, imposes, not merely a ministerial duty upon the city authorities, such as would result did their powers extend no further than to ascertain whose was the lowest bid, and the pecuniary responsibility of the bidder and his sureties, but also duties and powers which are deliberative and discretionary. • In this we concur with the court below. For it is scarcely open to doubt, but that the word under consideration, as it is used in the statute, means something more than pecuniary ability. In a contract, such as the one in controversy, the work must be promptly, faithfully and well done — it must, or ought to be conscientious work; to do such work requires prompt, skilful and faithful men. A dishonest contractor may impose work upon the city, in spite of the utmost caution of the superintending engineer, apparently good, and even capable of bearing its duty for a time, which in the end may prove to be a total failure and worse than useless. Granted, that from such a contractor pecuniary damages, may be recovered by an action at law; this is, at best but a last resort, that often produces more vexation than profit — a mere patch upon a bad job ; an exceedingly meager compensation, at best, for the delay and incalculable damage resulting to a great city from the want of a competent supply of water. The city requires honest work, not lawsuits. Were we to accept the interpretation insisted upon by the relators, the difference of a single dollar, in a bid for the most important contract, might determine the question in favor of some unskilful rogue as against an upright and skilful mechanic. Again.we know that, as a rule, cheap work and cheap workmen are but convertible terms for poor work and poor workmen, and if the city, for the mere sake of cheapness, must put up with these, it is indeed in a most unfortunate position. It is unnecessary, therefore, to resort to authority for the condemnation of the interpretation, by which the ruling of the court below is sought to be overturned, for it is opposed to the unbiassed judgment of all reflecting men, whether lawyers or laymen, and its adoption would be productive of far more evil than good. Agreeing then, as we do, with the Common Pleas that the duty imposed upon the respondents was deliberative and discretionary, we must also admit the conclusion reached by that court, to wit: that the writ of mandamus will not lie. Eor it is settled beyond controversy, that where the complaint is against a person or body that has a discretionary or deliberative function to exercise, and that person or body has exercised that function, according to the best of his or its judgment, the writ of mandamus will not be granted to compel the undoing of that which has been done: Griffith v. Cochran, 5 Binn. 87; Commonwealth ex rel. Watt v. Perkins, 7 Barr 42.

In the case in hand the respondents have performed their prescribed duty; not indeed in a manner satisfactory to the judge who delivered the opinion of the court below, and whose opinion we fully endorse, nor with much profit to the city treasury, but, nevertheless, not fraudulently or corruptly, and so we must let the matter stand. There is another aspect of this case, and which is quite as fatal to the right of the relators as that just discussed. It is a well-established rule that he who sues for the writ of mandamus, must have some well-defined right to enforce, which is specific, complete and legal, and for which there is no other specific legal remedy, and the right which he claims must be independent of that which he holds in common with the public at large: Heffner v. The Commonwealth, 4 Casey 108. But Snyder & Co. had no such right as above stated. By their bid they proposed to contract for certain work; that bid was not accepted. It was a mere proposal that bound neither party, and as it never was consummated by a contract, the city acquired no right against the relators nor they against the city. Snyder & Co. are wanting in a specific remedy only because they have failed to establish a legal right. The injury, if any, resulting from the rejection of their bid, fell upon the public and not upon them personally. It may be that, if they had obtained the contract, they might have made a profit, but the law takes cognisance of neither speculative contracts nor speculative damages, but only such as are fixed and definite. Where there is no contract there is no law, legem enirn contractus dat.

Judgment affirmed.