In Konig v. M. C.C. of Baltimore, 126 Md. 606, we decided that the contract involved in this controversy was invalid because it was not made in accordance with the requirements of the charter. The Board of Awards advertised for bids for a "Filter Equipment," which the Legislature had duly authorized the Mayor and City Council of Baltimore to build. Seventeen items were named in the specifications and the bidders were required to give the price of each item (the first being in the alternative for Item 1-A and Item 1-B). Paragraphs 10 and 11 of the specifications were as follows:
"Bids for Alternative Item: (10) Bidders must summit bids on both of the alternative Items, 1-A and 1-B. The Board of Awards reserves the right to accept either one of the alternative Items in connection with the other items of this contract.
"Statement of Quantities: (11) The following is a statement of the work required under this contract, and the items given below will be used as a basis in comparing the several bids, viz:
"Item 1-A. For Strainer System (Alternative Item).
"Item 1-B. For Strainer System (Alternative Item).
"Item 2. For 32 Filter Rate Controllers";
and then the several items from Item 3 to Item 17, inclusive, are given — all being set out in 126 Md., page 609. Items 1-A and 1-B are more particularly referred to, but it is sufficient to say that Item 1-A involved the use of a process called "Negative Head," and the Water Engineer of the City said that "Item 1-B was designed by him with the view of avoiding the `Negative Head' process, that the cost of the two systems, aside from the cost `of any patent license would be practically the same,' except that Item 1-B would involve the additional cost of putting on some pipes. It was also alleged in the bill and evidence was offered tending to *Page 468 show that the process called `Negative Head' was a patented process, the patent for which belonged to the New York Continental Jewell Filtration Company, and that the Norwood Engineering Company and the Pittsburg Filter Manufacturing Company were licensed to use that process."
The bids for the work were as follows:
Item 1-A. Item 1-B.
"M.L. Bayard .................. $323,071.75 $150,071.75
American Water Softener Co. ... 156,832.85 156,832.85
Norwood Engineering Co. ....... 222,854.38 223,752.38
Pittsburg Filter Mfg. Co. ..... 238,591.00 239,591.00."
The American Water Softener Company submitted with its bid a communication to the Board of Awards in which it stated that should the contract be awarded to it, and the letters patent referred to be sustained in the appeal taken by the City of Harrisburg in the case of New York Continental Jewell FiltrationCompany v. that City, and should an injunction to restrain the City and them from constructing and equipping the Baltimore filters as per the plans and specifications be applied for and granted, "then the filters shall be equipped and operated with the `device of venting filter effluents,' as shown on the City's drawing No. 161-A-4, and at the price named in our bid for Item 1-B, until the expiration of said Letters Patent, and at which time we shall remove the vent pipes, free of charge, if the City should desire us to do so."
The Water Engineer submitted his report and tabulation of bids to the Boards of Awards, accompanied by a letter set out in full in the former opinion. He stated that for the reasons given the American Water Softener Company should be considered the lowest responsible bidder. The Board of Awards after hearing counsel for the other bidders awarded the contract to that company, "reserving the right of requiring the construction of the contract under the direction of the Water Engineer, in accordance with either Item 1-A or Item 1-B as may be directed." A contract was entered into *Page 469 on March 20, 1914, between the Board of Awards and the American Water Softener Company, reserving the right to require the work to be in accordance with either alternative, Item 1-A or Item 1-B. On April 8th, 1914, before the work was begun, the plaintiff, a tax-payer, filed a bill on his own behalf "and on behalf of all other property owners and tax-payers of Baltimore City who may care to come into and avail themselves of this suit and proceeding," for an injunction against the City, the members of the Board of Awards, the Water Engineer, and the American Water Softener Company. An order was passed to show cause why the writ should not issue, a decree pro-confesso was obtained against the contractor, the other defendants answered, evidence was taken, and on March 25th, 1915, the Court below passed the decree from which the former appeal was taken — whereby the bill of complaint was dismissed.
We held "that the proposal of the American Water Softener Company was not submitted in accordance with the specifications, and that the contract awarded to that company and entered into by it and the City was not the contract or thing for which bids or proposals were invited by the advertisement, or for which there was competitive bidding," and declared the contract invalid. The case was remanded and the plaintiff then made application for the injunction — pursuant to the mandate as he claimed. Testimony was taken before the Court, and after reciting his reasons, the learned Judge below passed the decree from which this appeal was taken. It is dated the 17th day of July, 1915, and "adjudged, ordered and decreed that the contract of March 20, 1914, between the Mayor and City Council of Baltimore and the American Water Softener Company, be and it is hereby declared to be null and void, but that the prayer for an injunction, be and the same is hereby denied and refused, without prejudice, however, to the right of the plaintiff to proceed further in this cause, or to have, seek, institute or prosecute any other suit, action, proceeding or remedy, to *Page 470 which he may otherwise be entitled; and it is further ordered that the cost of this proceeding be paid by the defendants."
The appeal from that decree was duly heard by us, but the Court of its own motion, owing to differences in the views of the Judges who sat, ordered a reargument, which was heard by all of the members of the Court. Although some of them have been unable to concur, the majority have determined that under the circumstances the proper disposition of the case is as hereinafter announced. It may be well to here say that it is not our purpose to change the conclusion reached by us in 126 Md., as was argued by the appellees could properly be done by reason of evidence offered after the case was remanded. That opinion concluded as follows: "For the reasons stated we think the plaintiff was entitled to have the contract annulled and the performance and execution thereof enjoined, and we must therefore reverse the decree of the Court below and remand the cause.
But in view of the fact that the contract was partly executed at the time of the trial of the case in the Court below, and the statement of counsel that it would probably be fully executed and completed before the case was decided by this Court, the extent to which relief by injunction may be granted, and the terms of the injunction, if any, that should be issued by the Court below must depend upon the status of the parties to the contract with reference to the performance thereof when the cause reaches that Court."
The lower Court filed an opinion setting out the facts found by it from the evidence taken after the cause was remanded, and concluded it by saying: "And inasmuch as the highest Court of this State, while declaring the contract in controversy to be utterly void, at the same time imposed upon this Court the responsibility of determining `the extent to which relief by injunction may be granted and the terms of the injunction, if any, that should be issued,' and this Court is of opinion that the advantage to the plaintiff or any other tax-payer from an injunction prohibiting any further performance of the said contract, and therefore necessarily *Page 471 delaying the completion of the filtration plant at the very period of the year when it is most needed, would be inconsiderable in comparison with the loss and damage thereby occasioned to the `parties to the contract,' and, above all else, in comparison with the risk of danger to the public health from any delay, however brief, at this season." It then passed the decree quoted above.
Although it was not intended by us by what was said in the opinion in 126 Md. to leave to the discretion of the lower Court the question whether any injunction should issue, if the contract was not completed, yet in justice to that Court it must be said that inasmuch as it reached the conclusions stated by it as to what had been done, and as to the importance to the health of the people of a speedy completion of the work, and as it had the understanding, referred to above, of the responsibility imposed on it by this Court, it can well be understood why the learned Judge hesitated to issue an injunction — especially as his refusal to do so was without prejudice to the plaintiff proceeding in some other way. But as the case is now before us, there is something more than whether the Court should have refused to grant an injunction on July 17, 1915, when the decree appealed from was passed.
We understood it to be conceded at the re-hearing that the contract was then completed on the part of the contractor. Indeed it was said in the appellant's brief filed at the October Term that, "at this time, it probably may be assumed that the contractor has fully performed the contract on his part, although a substantial part of the contract price may still be retained by the City," and in the City's brief at that term it was said, "at the present time the entire work has been completed, the City is in possession of the completed work, and the people of Baltimore are enjoying the benefit of pure filtered water." The appellant's contention may be seen by reference to the above mentioned brief, following what we have quoted, where it goes on to say: "If any part of the contract price remains unpaid, its payment should be *Page 472 enjoined. To the extent to which the contract price has been paid there should be a decree directing the American Water Softener Company to pay the amounts of such wrongful payments, with interest, to the clerk of the lower Court, for repayment into the public treasury upon such terms and conditions as may be proper to safeguard the interests of complainant and the public. That complainant is entitled to this relief follows directly from the previous ruling of this Court to the effect `that the acts of the parties after the bill was filed can not deprive the Court of its jurisdiction.'"
Of course there can be no doubt about the general doctrine that after a Court of Equity has acquired jurisdiction over the parties in an application for an injunction they can not ordinarily deprive it of jurisdiction by doing, what was sought to be enjoined, before the Court acts, and that it may in proper cases require restoration or compensation — provided the pleadings and evidence authorize such relief. But there may be conditions which would not only make it futile to grant an injunction, but inequitable and unjust to require restoration or compensation such as is sought. We did not intend to commit ourselves by what we said in the former opinion to the granting of such relief as is now claimed, and if we had so intended we would have said so. In this case there are circumstances which unquestionably require a Court of Equity to proceed with extreme caution in determining what relief can properly be granted. While it is no longer an open question whether the contract was validly made, as our previous decision has settled that, it was not free from doubt before we decided it, and there was at least some ground for the belief that the contract was valid. It is not going too far to say that although we held it to be a violation of the charter, it was of a technical character. Not only the City law department, but the lower Court believed it to be valid. In point of fact the action of the Board of Awards in receiving the communication from the American Water Softener Company and in making the contract with the reservation referred to above, did not, and, *Page 473 unless we shut our eyes to the facts in the record, we may go further and say, could not, well result in favoritism or undue advantage to that company, for the reason that the evidence shows that the difference between the cost of the work, whether done under Item 1-A or Item 1-B, would not be more than $500, according to the appellees' testimony, and $1,000, according to that of the appellant, and the next lowest bid was over $66,000 higher than that of this company. That bid was of the Norwood Engineering Company, and that of the Pittsburg Filter Mfg. Co. was more than $80,000 higher. Those companies were licensed to use the patented process, and the difference in the bids for Item 1-A and Item 1-B by the former was about $900.00 and in those of the latter $1000.00. We do not deem it necessary to discuss the bids of M.L. Bayard as the Board of Awards had the right to decide whether he was a responsible bidder, and as in bidding he made a difference of $173,000 between his bid for Item 1-A and that for Item 1-B, more than double the bid of the American Company, $100,000.00 more than that of the Norwood Engineering Company for Item 1-A, and over $84,000.00 more than that of the Pittsburg Filter Mfg. Co., the Board can not be said to have had no ground for its action in reference to his bid, even if we were authorized to review it.
While the mere fact that a municipality can make a good bargain does not authorize it to violate its charter, yet when it so clearly appears as it does in this case, that it was not only no loss, but a very decided benefit to the City to make the contract with the American Company, and that the violation of the charter was of a character which indicates an honest mistake and not that it was intentional, a Court of Equity ought not to be required to deal with such a case precisely as it would with one where there was a deliberate and wholly inexcusable violation of law, especially if the latter showed fraud, collusion or unjust treatment of others.
As the contract is now completed on the part of the contractor, it would be useless to issue an injunction to restrain *Page 474 its execution, and certainly no good can be accomplished for the plaintiff and the people of Baltimore by a mandatory injunction requiring the American Company to remove the plant it installed. Indeed, the appellant cited authorities to show it should not be allowed to do so. But as the testimony taken after the case was remanded showed that the City had in hand a considerable sum for work already done, and that the value of the work yet to be done for the mechanical part was $2,590.12, and for the sand and gravel $30,717.90, all of which work the appellees concede has been finished and is now in use by the City, we have the right to assume that a large sum of money is still withheld from the contractor. The real question, therefore, is, what compensation, if any, should be decreed?
In addition to what we have already said, there are a number of facts and circumstances which tend to show that the plaintiff's claim of right to have all of the part of the contract-price, which remains unpaid, enjoined, and to have a decree directing the American Company to refund the amounts already paid it, with interest, is without merit, and it would, in our judgment, be inequitable and unjust to pass such a decree. In the first place, although his bill was filed April 8th, 1914, and an order to show cause was answered by the appellees April 21st, nothing was done until November 27th when a decree pro confesso was taken (but no injunction issued) against the American Company and on November 30th a general replication was filed. Over seven months and a half thus elapsed before the plaintiff made a move after filing his bill, although he must have known that the contractor was engaged in the performance of its contract and that by the terms of it it was liable to heavy damages if it did not complete it as it required. In Phelps' Jurid. Eq., sec. 262, it is said: "There may be laches in the failure to prosecute with diligence a suit actually commenced as well as by delay in commencing a suit." Although we do not mean to intimate that such lapse of time as we have referred to would authorize us to say that the defense *Page 475 of laches could be a bar, time is a circumstance to be taken into consideration in determining the relief to be given as the case is now presented. This contractor had the tax-payer on the one side alleging in his bill that the contract was invalid, but taking no steps to establish his claim, and the City on the other side claiming it was valid and insisting upon performance — the contract requiring it to begin work within ten days and to complete certain parts by May 15th, 1915, and to have it fully completed not later than December 1st, 1915. According to plaintiff's position it was liable to lose if it did, and by its contract it was liable to lose if it did not. Yet although the plaintiff did nothing with his suit for over half of the year in which the contractor was required to perform certain parts of the work, he now demands that the contractor get nothing for what it did. If a plaintiff can simply file a bill of this kind and thus secure the right to such relief as is now contended for, in the event that he ultimately succeeds in having the contract declared invalid, every principle of equity demands that he proceed with diligence.
In January the evidence was begun and on March 26th, 1915, the bill was dismissed by the lower Court — a year after the contract had been entered into. The appellant took an appeal, but did not file a bond to stay the operation of the decree, as authorized by Section 29 of Article 5. It certainly can not be claimed that after the lower Court had dismissed the bill the contractor was censurable for proceeding with the work. It was its duty under the contract to proceed, and if it had declined to do so, and this Court had affirmed the decree, it would have been in an unfortunate position if the City demanded the damages for delay provided for by the contract — $50.00 a day. The decree was reversed by us on the 24th of June, 1915, but when application was made to have an injunction issue, the lower Court declined to do so, and no injunction has ever been issued. The appeal from that decree is the one now before us. No bond was filed by the plaintiff to suspend the operation of *Page 476 that decree, and the contractor proceeded with the work to its completion. If a contractor is to be liable to have all the money yet unpaid him enjoined, and to be compelled to refund all he has received, under such circumstances as we have thus far stated, then it is amazing that bids can be obtained from responsible contractors for work for municipalities. While ignorance of the law is not a valid excuse, contractors engaged in work over the country can not be expected to be familiar with every detail of city and town charters. It takes an alert lawyer to keep pace with the changes constantly being made in them, and if the position of the appellant must be sustained, it seems to us that it must result in one of two things with responsible contractors — they must either refuse to bid at all, or must bid high enough to cover such contingencies — thus injuring, instead of benefiting all tax-payers of such municipalities.
There have been many cases in this Court, involving contracts with municipalities, beginning with Baltimore v. Eschbach,18 Md. 276, and including amongst others, Baltimore v. Gill,31 Md. 375; Baltimore v. Keyser, 72 Md. 106; Packard v.Hayes, 94 Md. 233; Baltimore v. Flack, 104 Md. 107, the former appeal in this case in 126 Md. 606, where JUDGE THOMAS carefully and ably considered many authorities, and although in some of those decisions, forcible language was used in announcing the well settled general doctrines, in regard to contracts with municipalities, and cogent reasons were given for holding municipal officers and those who contract with them to strict accountability and for granting relief to tax-payers, there has been no decision in this Court which, in our judgment, requires us to deprive a party to a contract, which we are satisfied was entered into by both sides honestly, and without the least intention of violating the law, of all the fruits of its labor and expenditures, and making a gift of them to the City, at the instance of a tax-payer who is not shown to have lost a penny, or to have been of any benefit to the municipality or its people, unless it be by securing for the City $156,000 *Page 477 of property for nothing from a contractor who by the contract saved the City at least $66,000, if measured by the other bids, excluding that of Bayard, of which we have already spoken. Assuming that the bid of the latter was properly rejected, and there is nothing to show it was not, that of the American Company was so much lower than the others that it is difficult to believe that the bill of complaint was filed for the protection of the City, or because the plaintiff believed that he or any other tax-payer was in danger of loss by reason of the contract.
We are aware that it was said in Packard v. Hayes,94 Md. 233, as it has been in other authorities, that the motives of tax-payers bringing such suits as this are immaterial, but we do not understand that to mean, as far as this Court is concerned, that in determining the relief to be given to a tax-payer we can not consider all the circumstances surrounding the contract. It certainly does not mean, when the question is as to what relief shall be granted, that he can be entitled to the same redress that he would be if he was really a sufferer, when he is not shown to have lost anything. In Kelly Piet Co. v. M. C.C.of Baltimore, 53 Md. 134, after referring to Mayor, c., ofBaltimore v. Gill, 31 Md. 393, which said the authorities were not altogether harmonious but sustained the right of a tax-payer to sue, the Court said: "It was only upon the principle that if such a remedy was denied, citizens and property holders, residing within the limits of a municipality, would be liable to injuryand damage from unauthorized and illegal acts of the corporation, that the suit was sustained." In the case of St.Mary's Industrial School v. Brown et al., 45 Md. 310, JUDGE ALVEY said that tax-payers could invoke the restraining powers of a Court of Equity, and that Court will entertain jurisdiction of their suit against municipal corporations and their officers when the latter "are shown to be acting ultra vires, or are assuming or exercising a power over the property of the citizen, or over corporate property or funds, which the law does not confer upon them, and when such un-authorized *Page 478 act may effect injuriously the rights and property of theparties complaining."
While under the decisions a Court of Equity may grant relief to a tax-payer even if it is not satisfied that he is acting in good faith, or is influenced by proper motives, yet when it is called upon to determine what relief it will grant the plaintiff there is no reason why the Court should be compelled to shut its eyes and not see what the real facts are. This Court refused to grant to Kelly, Piet Co. any relief, although they were tax-payers as well as bidders, because it was really a controversy between rival tradesmen for the custom of the City. Notwithstanding what we have said, the appellant claims to appear in this Court for the purpose of protecting himself and other tax-payers from loss, but no other tax-payer has within the two years since the bill was filed asked to be made a party. The Board of Awards can not be censured for endeavoring to save the City money in awarding the contract, if they believed they were complying with the charter. No other motive is suggested, and when we remember of whom the Board is composed, no improper motive will be presumed. Every principle of justice would prohibit an individual or a private corporation from profiting by such a mistake affecting an honest contractor, by keeping the fruits of the mistake without paying for them, and while the rules of law applicable to officers of municipal corporations are different from those governing private corporations, it would not be regarded by the public, for whose benefit such rules have been adopted, as just to deprive a contractor of all compensation for work done and accepted by the City under such circumstances as exist in this case.
Although the mere fact that a municipality obtained a good bargain does not excuse a violation of the requirements of the charter, yet a complainant in a bill in equity must have proper ground to stand on before he can demand that that Court give him relief. In 5 McQ. on Mun. Cor., sec. 2586, it is said: "It is generally held, unless otherwise provided by statute, that a tax-payer can not sue to enjoin an *Page 479 illegal or unauthorized act on the part of a municipality unless such act will result in an increase of his taxes or will otherwise result in direct or indirect pecuniary injury to him." The basis of our own decisions for permitting tax-payers to sue was their liability and that of the municipality to loss, and when a case has proceeded so far that the only live question is compensation vel non, it would be utterly illogical to grant relief beyond actual or possible loss to the tax-payer or municipality or both. See Baltimore v. Gill, 31 Md. 393; St.Mary's Indust. School v. Brown, 45 Md. 310; Kelly, Piet Co. v. Baltimore, 53 Md. 134, and other Maryland cases.
The only difference between the alternative items in dollars and cents was, as has been seen, from $500 to $1000. If the bid of the American Water Softener Company had been accepted for either one of the items, instead of as it was, it would have been valid, and it offered to build either at the same price. If the Board of Awards had acted in strict accordance with the charter, and had after the bids were received determined upon one or the other of the alternative bids, it would doubtless have given the contract to the American Water Softener Company, as outside of Mr. Bayard, it was so far below the others as to make no question about that. Now because the Board was guilty of a mere irregularity, which did not cost the City anything, as the contractor offered to build either for the price named, but indeed saved it at least $66,000.00, the contractor who was so unfortunate as to save the City that sum or more is now asked by a tax-payer who claims to represent the people of Baltimore, to furnish the plant for nothing. We have examined case after case presenting various views of similar and analagous questions, and we must say that while the general principles have been announced and confirmed, there are very few, if any, authorities in which so unjust and inequitable a demand has been made as in this case, and we have found none where such relief has been granted to a *Page 480 plaintiff who has so utterly failed to show any injury to himself or other tax-payer as the appellant has.
While it must be conceded that the weight of authority precludes a recovery by one relying on a contract made with a municipal corporation contrary to the provisions of its charter, either on the contract itself or on a quantum meruit, orquantum valebat, authorities are not entirely lacking to support such claim. In 3 McQuillin on Municipal Corporations, section 1181, on page 2624, it is said: "There is considerable authority, however, to support the rule that a recovery may be had on a quantum meruit in such cases, upon the theory that it is not justice, where a contract is entered into between a municipality and another, in good faith, and the corporation has received benefits thereunder, to permit the municipality to retain the benefits without paying the reasonable value therefor, the same as a private corporation or individual would have to do. And a municipality has been held liable, in many cases, for water or light furnished, where the exact ground for imposing liability, other than justice in a particular case, is not clear." But that is not the question in this case. The question here is whether a Court of Equity shall exercise its powers at the instance of one who has not shown that he or the City has lost anything, and deprive the Company which has spent $156,000.00 for the City, of the money already paid it, or what is still unpaid. Quite a number of cases have held that under such circumstances Courts of Equity should leave the parties in such transactions where they placed themselves, and will refuse to grant relief to either.
In this case the contractor is not seeking to recover, but a tax-payer asks that it be deprived of the entire contract price, for what we might use a term frequently used in this Court in another connection — "error without injury" — its error being entering into a contract which was supposed to be valid, and there being no injury, but on the contrary a benefit to the City resulting from that error. *Page 481
We are not unmindful of what our own Court and others for which we have the highest respect have said in reference to the importance of holding parties to municipal contracts to strict account, but being satisfied that our conclusion is not in conflict with any of our decisions, after giving the facts and circumstances of this case full consideration, we have concluded that the plaintiff is not entitled to more than the following relief:
As under our decisions there was a technical violation of the charter and taxpayers are authorized to complain of such violations, and to call upon a Court of Equity for such relief as in the judgment of the Court the circumstances authorize, we deem it proper that the appellant be protected from expenses connected with the proceeding, notwithstanding what we have said, and we will remand the case to the lower Court for a new decree. Understanding it to be conceded that the contract is completed on the part of the contractor, the decree shall recite that the injunction is not now directed to be issued, as the work on the contract has been completed, but that in lieu thereof such compensation be allowed as directed by this opinion. The lower Court shall ascertain how much of the contract price, to which the American Water Softener Company would be entitled but for this proceeding, is still in the hands of the City. If it find that it is sufficient the decree shall require the Mayor and City Council of Baltimore to pay out of such fund to the plaintiff the costs of this case, including the costs in this Court, and such fees for his solicitors, as the lower Court may allow — not to exceed, however, for said fees, the sum of $2000.00. It shall authorize the City to pay over to the contractor the balance in hand, retained by reason of this proceeding. If it appears that the City has not retained sufficient money from the contractor to pay said costs and fees, then the decree shall require the Mayor and City Council of Baltimore to pay them, not exceeding the amounts named above.
If either side contends that in point of fact the contract is not completed, then the lower Court shall determine that *Page 482 question, after hearing, and, if it so finds, it shall grant an injunction to prohibit its completion. Such determination and action shall not, however, affect what we have said in reference to what has already been paid or what is still in the hands of the City, for what has already been done, but that Court shall direct the payment to the American Water Softener Company of the balance in hand, after deducting the costs and the fees authorized to be allowed as hereinbefore provided for.
Decree reversed, and cause remanded for further proceedings,in accordance with this opinion, the costs to be paid as hereindirected.