dissenting.
The court is unanimous in the conclusion that the appellant had power to enter into a contract to erect a bridge by way of compensation to the railroads in question.
The only other question raised, and the only question upon which there is difference of opinion in the court, is as to whether the provisions of section 11 of the act under which appellant is organized, have been complied with in the letting of the contract here involved.
Mo charge of fraud or favoritism is made by the bill of complaint; but it is urged that the letting of the contract was illegal under the provisions of section 11, in that there was not proper competition allowed and opportunity for favoritism was afforded.
There is very general agreement of all authorities in interpreting the purpose of such provisions as those of section 11, to the effect that it is to obtain for the public the benefit of open competition, and to preclude favoritism in awarding contracts. The competition which it is sought to insure can not be other than full opportunity extended to every one to make offers upon complete plans and specifications of the work which is finally contracted for. The favoritism which it is sought to exclude would necessarily be any favoritism in choosing between those who have thus had opportunity to make and who have made offers upon such plans and specifications. It is not contended that this doctrine would operate to limit the exercise of the discretion of the board in choice of design or plan, even though the exercise of such choice might present possibility of favoritism. If the board had, before advertising for bids, accepted a design as the best and most suitable, even though its adoption limited the scope of competition to one or two persons who were capable of complying with its terms, yet, in the absence of fraud, such choice would not be held illegal on the ground that it offered opportunity for favoritism. In re Dugro, 50 N. Y. 513.
The contention of appellee is, however, that though such choice of design is within the control of the board before the advertising for bids, yet it can not be within their control after the taking of bids. If this is so, it can not be because of any possibility of favoritism in choice of design, but must be solely because it operates to limit the competition required. In the case here the contract was let to the Scherzer Bridge Company, and the design chosen was that known as the Scherzer design.
There was absolutely free competition afforded to bidders upon this design. With the advertised invitation to bid, complete plans and specifications were submitted, in accordance with which the contract was finally let. Every one who read the advertisement knew that the Scherzer design might be accepted, and every one had opportunity to bid upon the plans and specifications of that design.
Counsel for appellee, in his argument and citation of authorities, confuses two distinct and very different propositions, viz.: first, the necessity of furnishing definite plans and specifications of the design which, after submission to bidders, is made the basis of a contract; and, second, the necessity of submitting one design only to bidders, rather than to submit several designs, each accompanied with definite plans and specifications. Upon the first proposition all the authorities cited bear, and they are in substantial accord. Upon the second proposition no authority is cited by appellee.
Some cases are cited as holding that the choice among a number of designs considered must be made before the taking of bids. Upon examination, however, no one of them will be found to have presented that precise question. They do hold that definite plans and specifications must be adopted and submitted to the bidders, and that this is essential to full and fair competition. In the case here, such plans and specifications were adopted. In Littler v. Jayne, 124 Ill. 123, the substance of the decision is that no sufficient specifications were presented to bidders to permit of intelligent bidding. Bo question of choice of designs arose in that case.
In People v. Board, etc., 43 N. Y. 227, it would appear that no plans or specifications of the work finally let, viz., the construction of the Beam pavement, were ever approved by the board and submitted to the competition of bidders. The court said: “The board must first adopt plans and specifications of the work required to be done, so that those desiring to contract therefor can understandingly make offers for its performance. In this way only can competition be secured to the public.”
To the same effect are: Kneeland v. Furlong, 20 Wis. 460; Boren v. Commissioners, 21 Ohio St. 311; Mazet v. City, 137 Pa. St. 548; Fones Hardware Co. v. Erb, 54 Ark. 645.
In the Wisconsin case, the court thus indicated the question presented:
“ Bidders should be informed, either by the notice of the letting or by the specifications, etc., * * * of the terms of the contract; at least of the quantity or amount of work, whenever it can be specified, to be included in any one contract; the time within which it is to be finished; the manner in which it is to be done; and, if materials are to be furnished, their quality. All this we think the charter requires. Did the notice in this case give such information % ”
In the Ohio case the gist of the decision is expressed in these words: “ For the commissioners had no power to make a contract embracing work and materials not called for in the notice and specifications on which the proposals were made.” The reasoning is obvious, for on that part of the bid not covered by the invitation to bid and the specifications, there could have been no competition.
In the Pennsylvania case the decision turns upon the same question—the necessity of definite plans and specifications of the work which is let by the contract.
In the Arkansas case the same question as to necessity of plans and specifications is passed upon, and the court said :
“ If different plans and specifications were adopted, and bids invited at the same time for contracts according to each, whether the board could compare the bids upon the different plans submitted and accept the lowest bid upon the plan then selected, is a question not raised or considered.”
A like statement might consistently have been added to the opinion in each of the other of the foregoing cases, excepting, perhaps, in the New York case. I regard any doubt which might arise from the language of the court in that case as settled by a later decision of the same court, which is hereinafter cited. Other authorities relied upon by appellee are decisions in special assessment cases, which apply by analogy only, and go only to the question of necessity of definite plans and specifications. Upon this proposition substantially all authorities agree. No one of these cases referred to holds that if there be free and open opportunity to bid upon the design ultimately accepted, and if the plans and specifications of such design are submitted to the bidders, the choice of the design might not be as well made after as before the taking of bids. Nor am I able to find any authority to the effect that, under such circumstances, the particular one of several designs contemplated must be selected by the board before submitting the several designs, with plans and specifications thereof, to bids. There is, however, very respectable authority to the contrary. 1 Dillon on Municipal Corporations, Sec. 468; Attorney-General v. Detroit, 26 Mich. 262; City v. Hosmer, 79 Mich. 384; State v. Birkhauser, 37 Neb. 521; Gilmore v. City of Utica, 131 N. Y. 26.
The rule, as announced by Judge Dillon, is:
“ As the purpose of such a provision in the charter is to secure, through competition, the most advantageous terms, something is necessarily left to the discretion, to be fairly exercised, of course, of the council, in the adoption of the course which will best attain the end; and it does not contravene this restriction to call for bids for putting down various kinds of wood and stone pavements, some patented and some not, and afterward, when all the proposals are in, selecting the one which is relatively the lowest or the most satisfactory, all things considered; but when the kind is thus selected, the lowest responsible bidder who has the lawful power to perform his undertaking, has the absolute legal right to have the contract awarded to him.”
In the Michigan case, Mr. Justice Cooley said:
“The first question involved in the merits of the suit is, whether the council were justified in proceeding in the manner mentioned to obtain proposals. It is insisted, on behalf of the attorney-general, that the kind of pavement to be put down should be first determined, and that bids should be called for and competition invited for that kind alone. It is denied that wood pavement can be put in competition with stone pavement, or that two kinds of wood pavement, essentially different in construction and cost, can be included in the same notice which calls only for proposals for the paving of one street. * * * I do not doubt that it was competent for the council, in this case, to have confined the bids to what is called the Ballard pavement. But if this had been done, it must be obvious that the best method would not have been adopted to invite competition, or to obtain cheap pavements. Assuming that pavement to be protected by a valid patent, the assignees of the right were in position to fix their own terms in a contract, or for the permission to lay it. But if another kind was of nearly equal value, competition might perhaps be had by putting the one against the other, and inviting bids for both. The greater the number of such pavements, the larger is the opening for competition. It is quite true that if, when the bids are in, the council may reject one kind on the ground of its being less valuable than another, it must follow that the bids are not conclusive upon the right to a contract; but that the right in a council to determine the' kind is more likely to be exercised from dishonest motives after the bids are in than it would be in deciding what bids should be received, is not, to my mind, very apparent. On the contrary, the broader the door that is opened to competition, the greater will be the number of those who will be interested in watching the proceedings to see that just awards are made and .impartial judgments pronounced. If there is danger of corrupt understandings and combinations when there are a score of bidders, the danger is proportionately increased when the door is closed against all but one or two. And where, as in this case, the owners of the patented processes are not only invited to bid against each other, but are also put in competition with all who may offer to lay the kinds not patented, it is obvious that the council in their invitation for bids have done all that the nature of the case admitted of being done to secure competition for the public benefit. .The proposals have had the spirit of the law in view, and, I think, are within the letter also. * * * It would be the duty of the council, when all bids were in, to examine all, and to select the kind of pavement for which the bids, all things considered, were relatively the lowest. They might thus, perhaps, reject the kind they would have preferred in advance, but for which they find all bids exorbitant, and determine upon another, because, in their opinion, the offers made for it are more satisfactory. But when the kind is selected, they have no discretion to be exercised in a choice between responsible bidders. The lowest has an absolute right to the contract.”
In the Nebraska case the court said :
“ The advertisement or notice to contractors may, and in this case did, call for bids on the various kinds of materials liable to be used, and in that event contractors could bid as intelligently as if bids were asked for on vitrified brick alone, or on any other material. * * * The method adopted in this case is more likely to prevent combination between contractors than if bids were asked upon any one kind of material,” etc.
And:
“We are constrained to hold that bids for paving may properly be advertised for and received, either before or after the selection of material,” etc.
In the Gilmore case, which was a special assessment case, •the Hew York Court of Appeals said :
“ The plaintiff finds fault again upon the ground that there never were any accurate plans and specifications filed, because those which were filed provided in the alternative for the repavement of thirty-six feet in width, with street railroad tracks, outside the curbs, and between the curbs and sidewalks, or for the repavement, fifty-two feet wide, with a single or double street railroad track in the center of the street. We think there is no weight in this objection. If there wTere plans, etc., in the alternative, we see no ground for a charge of illegality therein. If the work would be more costly in proportion to the work done, if prosecuted with reference to one plan than the other, the offer, or proposal could be in the alternative. * * * Here, again, is an entire absence of proof that an injury has been caused a human being bv'reason of this kind of alternative plan. There is no evidence that any one was misled or prevented from bidding or that the cost of the work actually done was enhanced a penny by reason of this kind of plan. It is of the purest technicality, and under these circumstances courts should not be astute to find means of setting aside what, so far as the evidence shows, is a meritorious assessment, levied for the payment of the cost of a public improvement.”
These decisions are based upon good reasoning. Ho one could contend that the board might not, in its discretion, determine which of the several bridge designs was best adapted to the requirements, and hence which one should be the one to be used and the only one to be submitted to bids. The board had a very distinct interest in the operation of this bridge, aside from its acceptance by the railroads, for the terms of its contract with the railroads imposed upon it a burden as to the maintenance, operation, etc., of the bridge. Hor is there any reason wThy this determination should be made before rather than after the getting of bids. There is every reason for a contrary rule. For it might be that while one system of bridge was in fact better and more desirable than any of the others, yet it might not be so much better as to warrant the paying of an exorbitant difference in price. To submit plans of the one only to bidders, might and probably would result in limited competition and excessive bids. To submit other plans at the same time would naturally conduce to a wider competition and lower bids.
If all were invited to bid upon the Scherzer plans and specifications, the competition contemplated by the law was accomplished, and favoritism as between bidders upon such plans and specifications was precluded. The essentials laid down by all the authorities had then been fully complied with, viz., complete and definite plans and specifications furnished of the work contracted for, and & submission of the contract with such plans and specifications to the competitive bidding of all persons.
If we accept as sound the doctrine announced by Judge Dillon in his treatise and by Judge Cooley in his opinion, to the effect that the submission of the Strobel design, accompanied by plans and specifications, in no wise imposed any illegal limitation upon the competition on the Scherzer design, then it follows of necessity that the taking of bids upon any number of designs, whether accompanied by plans and specificatio'ns or not, no one of which was accepted, could not affect the legality of the competition upon the Scherzer design.
I dissent from the announcement of a rule which does not seem to be in accord with the only authorities upon the precise question presented.