Opinion
June 27, 1952. Rehearing Denied July 16, 1952.
Appeal from the Circuit Court, Dade County, J.N. Morris, J.
Price Price, Miami, for appellants.
John M. Murrell and Rollo Karkeet, Miami, for plaintiff-appellees.
Evans, Mershon, Sawyer, Johnston Simmons, Miami, for intervenor-appellee.
John Cicero, Miami, for defendants-appellees.
This is an appeal from summary final decrees wherein plaintiffs-appellees filed bill of complaint to enjoin the City of Miami from building an incinerator at the location of the present existing incinerator which has been in operation at said location for approximately twenty-eight years, upon the ground that said incinerator constitutes a nuisance; that it would be better for the City of Miami to build several small incinerators located in various parts of the City rather than one large incinerator of the capacity proposed; that the construction of the incinerator is not to the best interest and welfare of the City of Miami; that it would greatly increase the traffic problems in the area of the incinerator; that the bidding for the construction of said incinerator was not on a competitive basis; and that resolution No. 24086 awarding the bid to the lowest bidder is void and against the best welfare of the City of Miami. The lowest bidder, to-wit, Nichols Engineering Research Corporation, by leave of Court, was permitted to intervene and appellants, by leave of Court, were permitted to file a bill of intervention. Answers were filed and the City filed its motion for summary final decree supported by affidavits, whereupon the Court below entered its written opinion in said cause on February 28, 1952, finding there existed no genuine issue as to any material facts, and that a former suit involving plaintiffs-appellees and defendants-appellees, filed November 10, 1949, is res judicata; that said former suit was affirmed by this Court in the case of State of Florida ex rel. Knight v. City of Miami, Fla., 53 So.2d 636.
Upon examination of the bill of complaint filed in the former suit by the plaintiffs-appellees, it appears there are only two questions raised in this action which were not presented in the former cause, to-wit:
Whether or not the bidding on the construction of the proposed incinerator was on a competitive basis by reason of the fact that the plans called for a patented device under the control of Nichols Engineering Research Corporation, and that one of the engineers who assisted in the drafting of the plans and specifications for the incinerator in 1948 became associated with Nichols Engineering Research Corporation in 1951; and second, that resolution No. 24086, awarding the bid to the lowest bidder is void.
It is admitted in plaintiffs-appellees' bill of complaint that there were three bidders. There is no merit to the contention of illegality of the award of the bid because one of the engineers who in 1948 worked for the City in drafting the plans and specifications for the incinerator became associated, in 1951, with the successful bidder, since the record clearly shows that said engineer was an independent operator at the time he worked upon the incinerator plans, and did not have, directly or indirectly, any connection with the Nichols Engineering Research Corporation during the time he was employed by the City of Miami. There is no allegation of fraud. The contention of plaintiffs-appellees with reference to the patented device, which was under the control of Nichols Engineering Research Corporation, is also without merit, which matter has been passed upon in very recent times, on the very same patented device involved in this case, by the Supreme Court of Virginia in the case of Taylor v. County Board, 189 Va. 472, 53 S.E.2d 34, 38, in which the Court said:
"The county had a clear right to frame its specifications to permit it to buy a mechanically-stoked furnace if it turned out that it would be in the best interests of the county to do so. The fact that the Nichols mechanical stoker was the only one made, and was patented, did not shut the county off from inviting a bid on that type of stoker. The fact that there could be only one bid for that type did not make competition impossible. It could be and was made to compete with the hand-stoked type. * * *."
From an examination of the pleadings and affidavits supporting the motion for summary decree, it is quite evident that Resolution No. 24086, adopted on the 16th day of January, 1952, was in due conformity with the law pertaining to the passage of resolutions. There is no merit to the contention that the same is void, for the reason that it appears on the face of the record that it is a valid exercise of the lawful powers of the City Commission of the City of Miami in awarding the contract to the lowest bidder for the construction of the incinerator.
All other matters raised in the bill of complaint in this suit were raised in the former suit, hereinbefore mentioned, which were fully and completely adjudicated and determined in the case of State ex rel. Knight v. City of Miami, supra. No error having been made to appear the decrees appealed from are affirmed upon the authority of State ex rel. Knight v. City of Miami, supra; City of Jacksonville v. Nichols Engineering Research Corporation, Fla. 49 So.2d 529; Perry v. Town of Panama City, 67 Fla. 285, 65 So. 6; Wolfson v. Rubin, Fla. 52 So.2d 344; Knabb v. Duner, 143 Fla. 92, 196 So. 456.
Affirmed.
SEBRING, C.J., and ROBERTS and MATHEWS, JJ., concur.