Opinion
May 20, 1940.
September 30, 1940.
Municipal corporations — Powers — Contracts — Collection and disposal of garbage — Specifications — Act of June 23, 1931, P. L. 932.
1. Under the Act of June 23, 1931, P. L. 932, section 2403, cities of the third class have authority to contract for the collection and disposal of garbage. [474-5]
2. In an equity proceeding to restrain defendants from executing a contract providing for the collection and disposal by piggery of the garbage of a third class city, the evidence sustained findings that the specifications of the city adequately covered alternative methods of disposal and constituted a common standard of competitive bidding; that they were prepared at the direction of council and impliedly approved by council when the contract was awarded; and that the successful bidder complied with the specifications as to equipment and method proposed to be used and as to description of the location of the proposed piggery. [471-8]
Argued May 20, 1940.
Before SCHAFFER, C. J., MAXEY, DREW, LINN, STERN, BARNES and PATTERSON, JJ.
Appeal, No. 4, May T., 1940, from decree of C. P. Dauphin Co., Equity Docket No. 1408, in case of William J. Book et al. v. John A. F. Hall et al. Decree affirmed.
Bill in equity.
The facts are stated in the opinion of the lower court, by RICHARDS, P. J., specially presiding, as follows:
The plaintiffs are citizens, residents and taxpayers of the City of Harrisburg, Pa. The defendants are Mayor, councilmen, treasurer and controller of said City. The Bill seeks to restrain the defendants from executing a contract with Kirk Foulke, providing for the collection and disposal of the garbage of the City of Harrisburg, for a period of five years from the first day of May, 1938. While the contract has been awarded it has not been executed.
The Bill avers that the contract is illegal and void. If awarded under the Act of 1931, P. L. 932, it is alleged that there is no authority to contract for the "collection and disposal" of garbage but only for the "collection and removal" of garbage. If, on the other hand, the award was under the Act of 1919, P. L. 358, and if this act has not been repealed by the Act of 1931, supra, then the contract may not be executed because of defects in the antecedent procedure. These alleged defects relate to indefinite specifications, so called, allowing each bidder to prepare his own specifications, lack of a common bidding standard, allowing bidder to specify the manner of disposal, failure of Foulke to specify the location of the plant where the garbage would be disposed of, failure of Council to approve the location, failure of Foulke to include plans and specifications of piggery, absence on his part of any commitment to build a piggery, failure to show methods, apparatus and equipment to control nuisances and failure of Foulke to indicate that the trucks he proposed to use would comply with the specifications.
Injunction affidavits were filed with the bill. Upon bond being entered, the Court allowed a preliminary injunction restraining the defendants from executing the contract, from disbursing public fund to Foulke under the contract, and from dissipating the assets of the City by carrying out the alleged illegal contract.
Hearings were held to determine whether the preliminary injunction should be continued, at the conclusion of which, a decree was entered dissolving said injunction. Subsequently, an Answer was filed to the Bill, in which it was denied that each bidder was allowed to write his own specifications. On the contrary, it was alleged that alternative bids were asked for disposal of garbage by piggery, incineration or reduction. A common standard of bidding was said to exist and the contract alleged to violate no statutory provision. It was stated that council knew the location of the piggery and approved the site. It was averred that Foulke was not required to include in his bid plans for the piggery, but that he did, before the time of opening bids, furnish general plans of a piggery which he proposed to construct. It was also denied that Foulke failed to include methods, apparatus and equipment to control nuisances, and that the trucks proposed to be used failed to meet the specifications.
An amendment was allowed to the Bill by adding paragraph 5(a) which stated that the specifications were never approved by council and hence were null and void.
It was agreed that testimony given at the hearings held, relating to the preliminary injunction, should be considered by the Court in disposing of the case finally. No other testimony was offered. Requests for findings of fact and conclusions of law were submitted by both parties and are filed of record.
FINDINGS OF FACT1. The City Council of Harrisburg, Pa., adopted an Ordinance, of which Plaintiffs' Exhibit 1 is a true and correct copy, authorizing the Director of Public Safety to prepare specifications, advertise for and recommend the award of a contract for the collection and disposal of garbage for a period of five years from May 1, 1938.
2. Pursuant to said authority, the Director prepared said specifications and incidental papers relating thereto, Plaintiffs' Exhibit 2, being a true and correct copy thereof.
3. No prospective bidder complained of the specifications or suggested better ones.
4. The Director duly advertised for and received bids, each bid being on forms supplied by him and each bid covering disposal by piggery. The bids were as follows:
Kirk Foulke ............................ $109,975.00 Heagy Bros ............................ $147,000.00 Louis M. Suplee ........................ $136,990.00
5. The sealed bid of Kirk Foulke was filed by his Attorney with a transmittal letter containing detailed plans for a proposed piggery, to be conducted on a farm of 176 acres, located in West Hanover Township, Dauphin County, Pennsylvania. The letter was also accompanied by a map of the City showing zones of collection, and by sufficient description of method and equipment of collection and disposal to enable the Director and Council to judge the adequacy thereof, under the City specifications.
6. The Director and Council carefully considered the equipment, apparatus and methods proposed to be used by Foulke, and inquired about his responsibility and reliability in carrying out similar contracts in five other municipalities. They in like manner, considered the other bids submitted.
7. The site of the piggery proposed by Foulke was inspected and approved by the Director and so reported by him to Council.
8. The contract was awarded to Foulke on recommendation of the Director, after the above investigation and consideration, on April 19, 1938.
DISCUSSION1. DOES THE CITY HAVE THE RIGHT TO CONTRACT FOR THE COLLECTION AND DISPOSAL OF GARBAGE?
The Third Class City Law of June 27, 1913, P. L. 568, contains no provision relating to the collection and disposal of garbage. The Act of May 31, 1919, P. L. 358, amended the Act of 1913, by adding to Article 5, Section 3, Clause 49 which authorized cities to contract for the collection and disposal of garbage (53 PS 11057). The Act of June 23, 1931, P. L. 932, Sec. 2403, Clause 6 (53 PS 12,198, Clause 6 pp. 605, 606) provides for the collection and removal of garbage. This Act of 1931 specifically repealed the Act of 1913, supra, but did not specifically repeal the Act of 1919, supra. However, the Act of 1931, in Article 47, provided as follows:
"All other acts or parts of Acts of Assembly supplied by, inconsistent with, or pertaining to the subject matter covered by this Act, are hereby repealed. It is the intention that this Act shall furnish a complete and exclusive system for the government and regulation of cities of the third class, except as to the several matters enumerated in Section 103 of Article 1, of this Act."
While it may be argued that the provisions of the Act of 1919, above mentioned, are not supplied by, inconsistent with and do not pertain to the subject matter of the Act of 1931, we feel that the Act of 1919 is repealed by implication. We base this conclusion upon the intention expressed in the Act of 1931 to furnish a "complete and exclusive system of government for cities of the third class."
If we are correct in this matter, the right of the city to contract for the collection and disposal of garbage must be found in the Act of 1931. As has been said, the Act of 1931 does authorize contracts for the collection and disposal of garbage. We feel that the right to collect and remove garbage carries with it the incidental right to dispose of garbage. The control of nuisances and regulation of public health and safety would seem to require not only that garbage be removed but that it be disposed of. The disposal is incidental to the removal. This right to dispose of garbage is not only to be implied from powers expressly conferred upon cities of the third class but seems to be authorized by Section 2403, Clause 54 of the Act. This latter clause provides:
"54. Local Self Government — In addition to the powers and authority vested in each city by the provisions of this Act, to make and adopt all such ordinances, bylaws, rules and regulations not inconsistent with or restrained by the constitution and laws of this Commonwealth, as may be expedient and necessary for the proper management, care and control of the city and its finances, and the maintenance of peace, good government, safety and welfare of the city. . . ."
We conclude, therefore, that the City of Harrisburg has authority, under the law, to make a contract for the collection and disposal of garbage.
2. DO THE SPECIFICATIONS SET UP A COMMON STANDARD FOR COMPETITIVE BIDDING AND FOR THE LETTING OF THE CONTRACT TO THE LOWEST RESPONSIBLE BIDDER?
It is conceded that a common standard of bidding must exist. Without such a standard it would be impossible to compare bids and ascertain the lowest responsible bidder. Mazet v. Pittsburgh, 137 Pa. 548, 563. It is the contention of the plaintiffs that each bidder was allowed to write his own specifications. This position is based upon Part II of the specifications, page 1-a, which reads as follows:
"At the time of opening the bids, the person, or persons submitting a bid or estimate, shall furnish one set of general plans and specifications, setting forth the equipment and methods proposed by the Contractor, for collecting, receiving, transporting, conveying, handling, treating and disposing of the garbage. In particular the methods, apparatus and equipment for the control of nuisances that may arise during the process of treating or disposal of the material shall be shown, specified and described in sufficient detail to enable the City Council to judge of their adequacy and sufficiency, as it is an essential requirement of this contract that neither objectional odors, noxious gases nor putrescible liquid shall escape during or after the process of treatment or disposal to the extent of constituting a public nuisance."
The defendants contend that the specifications of the City called for alternative bids for disposal by three methods, to-wit: piggery, reduction or incineration. This is borne out by the questionnaire which the bidder was required to fill out, paragraph 3 — Method of disposing. We do not think that the City was obliged to give minute specifications for a piggery, an incinerator and a reduction plant in order to have a common standard for bids. As a matter of fact, all bids submitted were based upon the use of a piggery. No bidder complained that the specifications were vague or indefinite. The City was interested only in the collection and disposal of garbage without jeopardizing the public health, safety and welfare. The particular plan proposed by the bidder was subject to approval by council. In our opinion, the specifications adequately covered alternative methods of disposal and constituted a common standard of competitive bidding. See Brener v. Philadelphia, 305 Pa. 182, 186.
It is further contended that the specifications were not submitted to or approved by council before bids were asked for. They were prepared at the direction of council and impliedly, at least, approved by council when the contract was awarded.
3. DID FOULKE COMPLY WITH THE SPECIFICATIONS?
(a) As to equipment and methods proposed to be used.
Foulke submitted his bid on the form provided by the City. Contemporaneously therewith, his Attorney delivered a letter showing the zones of collection, the type of vehicles to be used, proposed collections in accordance with specifications, plant, consisting of sanitary pens on a farm of 176 acres, located in West Hanover Township, Dauphin County, Pennsylvania, and general plans of proposed plant. All this was in the hands of the Director of Public Safety when the bids were opened. We think that the acts of the Attorneys, never questioned by Foulke, are equivalent to his own acts. We conclude, that this was a substantial compliance with the requirements of the specifications.
(b) Adequacy of description of location of proposed piggery.
While the precise location of the farm on which it was proposed to conduct the piggery may not have been given, it was known to council and inspected by the Director before the contract was awarded. We consider this, at most, a technical matter which does not avoid the bid. The City authorities are not complaining about this and the plaintiffs have shown no damage.
CONCLUSIONS OF LAW1. The City Council of Harrisburg, Pa., has legal power to execute the proposed contract with Kirk Foulke.
2. The specifications set up a common standard, insured fair and just competition, and provided for the letting of the contract to the lowest responsible bidder.
3. The specifications called for alternative methods of disposal of garbage, a subject not capable of exact standardization.
4. Council was not required to approve the specifications prepared by the Director other than as incidental to the award of the contract.
5. The award of the contract to Foulke constituted an approval of the site on which he proposed to build the piggery.
6. Kirk Foulke complied with all the requirements set forth in the city specifications, is the lowest responsible bidder and is entitled to have the contract executed by the city.
7. The bill should be dismissed.
DECREEAnd now, to-wit: April 11, 1939, upon due consideration, it is hereby ordered, adjudged and decreed that the Bill be dismissed at the cost of the plaintiffs.
The Prothonotary is directed to enter the decree nisi on his records, and to notify the parties to these proceedings or their counsel. If no exceptions are filed within ten days thereafter the decree shall become final as of course.
Plaintiffs appealed.
Errors assigned related to the action of the court below in dismissing exceptions to the findings and conclusions of the chancellor.
Mark T. Milnor, for appellants.
Paul G. Smith, for appellees.
The decree in this case is affirmed on the opinion of the learned chancellor directing it to be entered. Costs to be paid by appellants.