
    McCallin’s Appeal. [Safford v. McCallin et al.]
    The department of a%vards of the city of Pittsburgh awarded a contract for two fire engines to the Manchester Locomotive Works at $5,000 for each engine. There were two other bidders, each of whom offered to supply the engines for $4,575 for each engine. On a bill in equity, by a taxpayer, against the individual members of the department of awards, to restrain the department of awards from entering into a contract on behalf of the city with the Manchester Company, it was alleged that the award was exorbitant, unlawful and fraudulent, and that the specifications called for boilers with copper tubes but the award was made for an engine with a flue boiler, which is not so good. The answer denied the allegations of fraud and averred that the department of awards, after due consideration, had decided that, taking all things into consideration, the bid of the Manchester company was the lowest responsible bid, that the engine offered by them was a better engine than the others, that it would cost less for repairs, that it had been in use in Pittsburgh for many years and was better understood by the firemen, and that it was supplied with the Endicott platform spring, not included in the specifications, which was a most important consideration in the purchase of steam engines. The answer further averred that the flue boilers and tubular boilers were substantially the same and equally good. The court below granted a preliminary injunction on the ground that, while the department of awards acted in good faith, their discretion was limited to the responsible character of the bidder, under the Act of May 24,1887. Held, that the injunction should he dissolved.
    Feb. 2, 1889.
    Appeal, No. 41, Oct. T. 1888, from O. P. No. 2, Allegheny Co., to review a decree awarding a preliminary injunction on a bill in equity, by H. E. Safford against William McCallin, mayor, J. O. Brown, chief of department of public safety, E. M. Bigelow, chief of department of public works, R. C. Elliott, chief of department of public charity, constituting the department of awards of the city of Pittsburgh, to restrain the defendants from entering into any contract, on behalf of the city of Pittsburgh, to purchase fire engines from the Manchester Locomotive Works, at Jan. T. 1889, No. 203.
    The bill averred, in substance: 1. That plaintiff was a taxpayer of the city of Pittsburgh. 2. That J. O. Brown was the chief of the department of public safety. 3. That the department of awards was composed of Wm. McCallin, J. O. Brown, E. M. Bigelow and R. C. Elliott, for the awarding of contracts for public works and supplies in all the departments of the city of Pittsburgh, and that said contracts were required to be awarded in compliance with the provisions of an ordinance of the city of Pittsburgh, approved December 17, 1887, § 22, which contained, inter aha, the following clause:
    “ There shall be and is hereby created a department, to be known as the department of awards, consisting of the mayor, heads of public safety, public works and charities, for the awarding of contracts for public works and supplies in all departments of the city, except as otherwise provided by Act of Assembly. All such contracts shall be let openly and awarded publicly, in the common council chamber, to the lowest responsible bidder on yea and nay vote, of which record shall be kept, and no contract exceeding fifty dollars in amount shall be binding upon the city of Pittsburgh until the same shall have been reported to and approved by the councils thereof, and, when so approved, the head of the proper departments shall make and execute such contracts in behalf of the city for the departments. All contracts shall be awarded after due public notice, as now provided by law, upon such specifications as shall be approved by the department of awards.”
    4 and 5. That J. O. Brown, chief of the department of public safety, advertised for two extra first-size steam fire engines, with certain specifications for the same, giving the advertisement and specifications. 6. That there were three bids: one by the Manchester Locomotive Works for $5,000 for each engine; one by the Clapp & Jones Manufacturing Co. for $4,575 for each engine; and one from the La France Fire Engine Co. for $4,575 for each engine. 7. That the contract was awarded to the Manchester Locomotive Co. for $5,000 for each engine. 8. That the contract is not yet fully executed and must be approved by the councils of the city of Pittsburgh before it becomes binding. 9. That the bid of the Manchester Locomotive Works was greater than the bids of the Clapp & Jones Manufacturing Co. and the La France Manufacturing Co. 10. That the engines of the Clapp & Jones Manufacturing Co. and the La France Manufacturing Co. were equal, if not superior, to the engines of the Manchester Locomotive Co. 11. That the letting of the contract to the Manchester Locomotive Co. is exorbitant, unlawful and fraudulent. 12 and 13. That the specifications called for boilers of the best steel with copper tubes, but that the award was made for an engine, the style of which is a flue boiler, and not a tubular boiler, and that the tubular boiler is superior to the flue boiler. 14. That the Clapp & Jones Manufacturing Co. offered to give a guarantee as to the working of their engines. 15 and 16. That the proposals submitted by the department of awards for the testing of the different competing steam hre engines was not made in good faith and was unfair. .
    • The prayers were for preliminary injunction, thereafter to be made final, restraining the defendants from entering into any contract or agreement on behalf of the city of Pittsburgh to purchase tbe engines of the Manchester Locomotive Works; and further relief.
    The answer averred, in substance, as follows : 1. That Safford is not the owner of any real estate in the city of Pittsburgh and is not a tax-payer of the city. 2. Admitted the averments in the 2d, 3d, 4th, 5th, 6th and Yth paragraphs of the bill. 3. Denied the averments in the 8th paragraph, and averred that the contracts for the Manchester engines had been approved by the councils of the city of Pittsburgh. 4. Admitted the averments in the 9th paragraph. 5. Denied the averments in the 10th paragraph to the effect that the Clapp & Jones Manufacturing Co. engine and the La France' engine were equal, if not superior, to the Manchester Locomotive Works engine. 6. Denied the averments in the 11th paragraph of the bill and averred that the award was neither exor^ bitant, unlawful nor fraudulent. Y. In answer to the 12th and 13th paragraphs of the bill, averred that the bid of the Manchester Locomotive Works did comply with the specifications and that the flue boilers and tubular boilers were practically one and the same thing, and denied that tubular boilers were superior to flue boilers as used on fire engines. 8. Did not deny the guarantee offered by the Clapp & Jones Manufacturing Co. averred in the 14th paragraph of the bill. 9. Denied the averments in the 15th and 16th paragraph of the bill. 10. Averred that the department of awards, acting in entire good faith, awarded the contract to the Manchester Locomotive Works for the two fire engines and that said award was approved by both branches of the councils of the city of Pittsburgh. That the proposals were duly advertised .and that bids were received for thé fire engines as follows: From the Manchester Locomotive Works, June 11,1888; .from the Clapp & Jones Manufacturing Co., June 15, 1888; and from the La France Fire Engine Co., June 16, 1888.
    That the La France Co., among other things, proposed, with its bid, that a public test should be made wherein all competing engines should appear and that the department of awards considering this, accepted it, with slight modifications, and that, after this acceptance and a notification to all the companies, both the La France and the Clapp & Jones Manufacturing Co. declined to compete. That the test was a fair and reasonable one and in substantial compliance with the proposal of the La France Engine Co.
    That the different bids were opened and considered by the department of awards, and, after due consideration thereof, said department concluded that, taking all things into consideration, the bid of the Manchester Locomotive Works was the lowest responsible bid. That, in determining this question, the department of awards considered, among other things, that the Amoskeag engine, manufactured by the Manchester Locomotive Works, had been in use in the city of Pittsburgh since 1861, with most favorable results to the city, and that it was believed to be, and the department of awards believed it to be, a superior engine to that of the La France Co. or the Clapp & Jones Manufacturing Co. That neither the La France nor the Clapp & Jones engines had ever been used in the city, and that, if the same were purchased or used, it would require the employment of engineers and the training of them for. the handling of such engines, because they were of different construction from the Amoskeag engine, which was in general use in the city.
    That the Amoskeag engine had what is known as the “ Endicott platform spring,” which is a patented article and is so constructed as to protect the machinery of the engine from jars and displacements in running over the rough streets of the city, and that, in the judgment of the department of awards, the Endicott platform spring was a most important consideration in the purchase of steam fire engines.
    That the Amoskeag was of the more simple construction and less liable to become out of order and much more likely to bear the strain and service of a steam fire engine.
    That for these, among other, reasons, which involved the particulars of the construction of the different engines, they believed that it was better for the city of Pittsburgh to award the contract to the Manchester Locomotive Works than to either of the competing companies, and that, all things considered, the Manchester Locomotive Works’ bid was the lowest responsible bid for the engines.
    Affidavits were filed by both parties in support and denial of the allegations of the bill and answer.
    The La France Company’s offer included numerous of their patents of the various parts of the engine. The Clapp & Jones Company’s offer included their patents of the various parts. The Manchester Works offered to furnish the engines “in strict accordance with the plans and specifications ” of the department of awards.
    The court below granted a preliminary injunction, -in an opinion reported in 6 Pa. C. C. R. 101, by White, J., on the ground that, while the department of awards acted in good faith, their discretion was limited to the responsible character of the bid or bidder, under the Act of May 23, 1814, § 6, P. L. 230.
    On Dec. 6, 1888, after argument, the preliminary injunction was continued until the further order of the court.
    
      The assignments of error specified the action of the court, 1, in granting the preliminary injunction, restraining the letting of a contract by the city of Pittsburgh to the Manchester Locomotive Works for two fire engines; '2, in continuing said preliminary injunction and in making the order of Dec. 6, 1888.
    
      D. T. Watson, with him W. C. Moreland, for appellants.
    The city of Pittsburgh was not made a party to the bill and any decree affecting it is void.
    The bid of the Manchester Locomotive Works was the only bid that complied with the specifications. The other companies only offered to supply their own engines.
    
      All three bids differing from each other as to the engines to be furnished, it was within the power and discretion of the board of awards to award the contract to the one they believed, under all the facts, to be the lowest responsible bidder. In the absence of fraud, the board having, in good faith, decided that the Manchester Locomotive Works was the lowest responsible bidder, this is conclusive and the court below had no power to revise it. Act of May 23, 1874, § 6, P. L. 230, Com. ex rel. v. Mitchell, 82 Pa. 343; Finley v. Pittsburgh, 82 Pa. 351; Douglass v. Com., 108 Pa. 559; McLaughlin v. Kneass, 7 Phila. 634.
    
      Geo. W. Guthrie and A. W. Duff for appellees.
    The department of awards was not vested with the discretion of determining the kind of engines to be used in the city and excluding all others. Such discretion was vested only in councils by ordinance of Dec. 17, 1887, § 22.
    The discretion exercised by the department of awards was not exercised in a fair, candid and unprejudiced manner, but arbitrarily and unlawfully.
    Where anything is left to any person to be done according to his discretion, the law intends that it must be done with a sound discretion and according to law. Schlaudecker v. Marshall, 72 Pa. 206; Raudenbusch’s Petition, 120 Pa. 328; Rex v. Askew, 4 Burr. 2,189; Rex v. Archbishop of Canterbury, 15 East, 139; Shortt on Mandamus, 260.
    It was not necessary to join the city as a defendant. Dillon on Municipal Corp., § 870; Wood on Mandamus, 134; 1 Ld. Raymond, 554.
    Com. v. Mitchell, 82 Pa. 343, and Douglass v. Com., 108 Pa. 559, were decided on the ground that the lowest bidders were not responsible.
    Feb. 4, 1889.
   Per Curiam,

The decree is reversed at the costs of the appellees and the injunction dissolved.

Prior to the injunction in this case, an injunction was issued by C. P. No. 1, restraining the city from executing a contract with the same company, on the ground that the specifications by calling for a patented appliance, prevented competition. Breen v. Pittsburgh, 6 Pa. C. C. R.  