Opinion
18554.
ARGUED APRIL 13, 1954.
DECIDED MAY 11, 1954.
Injunction. Before Judge Atkinson. Chatham Superior Court. February 9, 1954.
Kennedy Sognier, for plaintiff in error.
Edward M. Hester, Aaron Kravitch, contra.
1. "When a judgment refusing an interlocutory injunction is brought to the Supreme Court for review, the trial judge is authorized to grant a supersedeas upon such terms as may by him be deemed necessary to preserve the rights of the parties until the judgment of the Supreme Court can be had . . . [Code § 55-202]. It is left, however, in the sound legal discretion of the judge to grant or refuse it. West v. Shackelford, 138 Ga. 163 ( 74 S.E. 1079)." Prater v. Barge, 139 Ga. 801 (1) ( 78 S.E. 119).
( a) The trial judge did not abuse his discretion in refusing to grant a supersedeas in this case.
2. This is not a case where two or more dealers had placed bids for the furnishing of identical vehicles, but is one where a Ford dealer and a Chevrolet dealer had each submitted a bid for furnishing his product, the two bids in controversy covering different makes of automobiles, thus calling for a discretionary decision as to whether the difference in the products would justify the difference in price. As was said in City of Atlanta v. Stein, 111 Ga. 789, 791 ( 36 S.E. 932, 51 L.R.A. 335), courts "should never undertake to substitute their judgment in matters of judgment, for that of the city's governing authorities."
3. "When a municipal corporation is, by its proper officers, acting within the scope of its powers, a court of equity will not, at the instance of the taxpayers of the corporation, interfere to restrain or control its action, on the ground that the same is unwise or extravagant. To sustain such interference, it must appear, either that the act is ultra vires or fraudulent and corrupt." Wells v. Mayor c. of Atlanta, 43 Ga. 67 (2).
4. "The business affairs of a municipality are committed to the corporate authorities, and the courts will not interfere except in a clear case of mismanagement or fraud." McMaster v. Mayor c. of City of Waynesboro, 122 Ga. 231 (5) ( 50 S.E. 122). See also Barr v. City Council of Augusta, 206 Ga. 753 ( 58 S.E.2d 823); Code § 69-203.
5. "Where a municipal board is authorized to do a particular act in its discretion, the courts will not control this discretion unless manifestly abused, nor inquire into the propriety, economy, and general wisdom of the undertaking, or into the details of the manner adopted to carry the matter into execution." Chipstead v. Oliver, 137 Ga. 483 (2) ( 73 S.E. 576). See also Ashley v. City of Greensboro, 206 Ga. 800, 805 ( 58 S.E.2d 815).
6. Applying the foregoing principles of law to the pleadings and evidence in this case, the trial judge did not err for any reason assigned in denying the temporary injunction.
ARGUED APRIL 13, 1954 — DECIDED MAY 11, 1954.
This was a proceeding to enjoin the City of Savannah from consummating the purchase of ten Chevrolet automobiles for use by the Police Department, brought by a Ford dealer, without naming the Chevrolet dealer as a party, in which J. C. Lewis, Jr., as a taxpayer and citizen, was allowed to intervene.
On December 23, 1953, the Mayor and Aldermen of the City of Savannah authorized the Board of Purchase and Supervisor of Purchases to advertise for bids for the purchase of ten new automobiles of the Ford, Chevrolet, or Plymouth class, for the Police Department, which was done, with a statement in the advertisement that the "Board of Purchase reserves the right to reject any or all bids without formality"; and J. C. Lewis Motor Company, Inc., the local Ford dealer, submitted a bid.
On January 22, 1954, a meeting of the Board of Purchase was scheduled for 12 o'clock. At this meeting the City Comptroller, who is not a member of the Board of Purchase, opened all of the sealed bids, and it was determined that the bid of the plaintiff was lower than that of the Chevrolet dealer, the latter's bid being $13,711.12, whereas the plaintiff's bid was $13,319.00, a difference of $392.12, or $39.21 per vehicle. However, no quorum of the Board of Purchase was present and no award was made. Later, during the same day, a meeting of the Committee as a Whole, which acts as the Police Committee, was held at the City Hall. At this closed meeting, which was attended by all the Aldermen, and the City Comptroller, but the Supervisor of Purchases was absent, the Board of Purchase awarded the contract to the Chevrolet dealer. Aldermen other than those who are members of the Board of Purchase in attendance acquiesced in the action taken.
The original petition of J. C. Lewis Motor Company, Inc., filed on January 29, 1954, sought to enjoin: (1) the purchase of certain motor vehicles; (2) favoritism and discrimination against plaintiff in the purchasing of motor vehicles, and (3) to set aside and have declared illegal and void a certain contract awarded January 22, 1954, for the purchase of ten motor vehicles, in accordance with which award the Supervisor of Purchases, upon requisition submitted by the Police Department, had already proceeded to order the ten automobiles. A rule nisi was issued along with a temporary restraining order.
On February 3, 1954, J. C. Lewis, Jr., as a taxpayer and citizen, was allowed to intervene as a party plaintiff, and on the same date the original petition was amended to show that the petitioner owns considerable real estate within the City of Savannah, pays a substantial amount of taxes thereon each year, as well as business licenses and personal-property taxes, and alleged that the injury which has been done to petitioner's business, and which will continue to be done unless proper relief is granted by the court, is irreparable.
The petition alleges that the contract for purchase of ten automobiles upon which bids were opened on January 22, 1954, is void and illegal because: (a) The contract award was not made in the manner provided by laws of Georgia and of the city, the laws of the city being duly adopted ordinances of the city, attached to the petition as an exhibit and known as sections 7-101 to 7-114 of the Code of Savannah of 1945; (b) defendants abused any discretion which they had by reason of their constant discrimination; (c) because defendants failed to award a contract to the lowest bidder; (d) because defendants have adopted methods which tend to discourage competition; and (e) because the Police Committee, sometimes called the Committee as a Whole, has no power at a secret meeting to award a contract.
The city filed an answer, denying material allegations of the petition and averring: that the city is not compelled as a matter of law to accept lowest bid unless goods are equal in every way to goods offered by the next highest bidder; that the Police Department and Fire Department have all along indicated their desire and preference for Chevrolet automobiles because, according to their experience, they are best adapted for police and fire use; and that, while the low bid is a determining factor, it is not the sole determining factor.
Uncontradicted testimony of J. C. Lewis, Jr., shows that J. C. Lewis Motor Company, between March 14, 1950, and January 22, 1954, on nine separate occasions, had been the low bidder for the sale of vehicles to the city; that the total savings in money would have been $4,231.65 had the defendants accepted these bids; that on each of these occasions the award had been given to a dealer whose bid was higher than plaintiff's bid; and that this discrimination and favoritism has continued throughout this period of time, and still continues. The evidence, however, does not disclose that any of the bids accepted on these nine occasions was for the same make of automobile as that handled by the plaintiff.
There was other evidence, showing that the J. C. Lewis Motor Company had in the past been awarded a number of contracts for vehicles, and that the reason this company was not awarded the contract for Fords, instead of Chevrolets, in this instance was because the Police Department, for whose use the cars were being purchased, felt that the Chevrolets were better suited for police use, had given excellent performance over a long period of years, the repair department was better equipped to handle Chevrolets, and the Chief of Police felt that the Chevrolets would be more economical to operate.
After a hearing, the temporary injunction was denied and the restraining order dissolved. Thereafter the plaintiffs moved for a modification of the judgment on the temporary injunction to preserve their rights on appeal, which was denied. Petitions for supersedeas in the lower court and the Supreme Court were denied. Exception here is to the judgment of the trial court denying the temporary injunction. Additional exceptions were taken to the denial of the petition for modification of the judgment to preserve their rights on appeal.
Only the 5th and 6th headnotes require elaboration. It is contended by the plaintiffs that City Code § 7-101, which provides for a Board of Purchase composed of five members, consisting of the Mayor, Chairman of the Finance Committee, and three other Aldermen, was violated because the City Comptroller is not by law a member of the Board of Purchase and had no right to open the bids; that City Code § 7-102, providing that a quorum of the Board of Purchase shall consist of three members, was violated because the bids were opened at a meeting of the Board of Purchase at which only two members were present; that City Code § 7-103 was violated because by it the sole and exclusive control of purchases is vested in the Board of Purchase, and gives the City Comptroller and other Aldermen and employees not on the Board of Purchase no right to participate therein, and that the Committee as a Whole usurped the prerogatives of the Board of Purchase by attempting to make an award contrary to § 7-103, which gives "sole and exclusive purchase of all supplies and materials of whatsoever nature" to the Board of Purchase; and that City Code § 7-108, which provides that the "Supervisor of Purchases shall keep a complete and accurate record of all bids submitted for all supplies, equipment, etc.," was violated by the City Comptroller participating in the meeting in the absence of the Supervisor of Purchases.
Counsel for the plaintiffs argue that the alleged illegal acts of the City Comptroller herein enumerated resulted in injury to them by reason of certain members of the Board of Purchase later being informed that the difference in the bids amounted to $25 per vehicle, whereas the actual difference was $39.21 each. While the evidence of the Mayor and one other member of the Board of Purchase indicates that they were informed that the difference between the bids was approximately $25 per unit, the evidence further discloses that all five members of the board were present and unanimously voted on the matter, and that "the Board of Purchase were the ones who voted" to award the contract to the Chevrolet dealer. There is no evidence that the three other members of the Board of Purchase, two of whom were present when the bids were opened, were not aware of the actual difference between the two bids in question, which had been tabulated and were available to all the members.
The Supervisor of Purchases testified that he was present at the meeting when the bids were opened and "tabulated them," and that "after opening and reading the bids they adjourned." He further testified, "after the bids are opened I may sit in at the meeting or they may decide on the matter at a closed meeting themselves; I am not a member of the board . . . I am directly under Mr. Bailey, the Comptroller; the usual procedure before they [Board of Purchase] act on a matter, it goes to the Comptroller for final verification and then in turn to me, and this procedure was followed in this case." The City Comptroller testified: "The activities of the Board of Purchase are directly under the Comptroller . . . the Supervisor of the Board of Purchase reports to me . . . I am required to attend meetings of all Committees of the Whole and all Council meetings."
The Board of Purchase was clearly acting within the scope of its powers; no evidence was adduced to show that it acted fraudulently or corruptly in awarding the contract for the purchase of ten automobiles to the Chevrolet dealer, or that the presence of other Aldermen at the time the contract was awarded by the Board of Purchase in any way influenced its action, or injured the plaintiff. The board is a branch of the municipal government, invested with discretion in the purchase of all supplies and materials of whatsoever nature needed or required by any department of the city government. Under such circumstances the rule is that, where a municipal board is authorized to do a particular act in its discretion, the courts will not control this discretion unless manifestly abused, nor inquire into the propriety, economy, and general wisdom of the undertaking, or into the details of the manner adopted to carry the matter into execution. Chipstead v. Oliver, 137 Ga. 483, 486 ( 73 S.E. 576), and cases there cited. The trial judge was authorized to find that the board did not act arbitrarily, fraudulently, or corruptly, and that it did not abuse its discretion.
Judgment affirmed. All the Justices concur.