Commonwealth v. Brown , 25 Pa. Super. 269 ( 1904 )

Opinion by

Porter, J.,

The proceedings to determine the necessity for the erection of a new courthouse seem to have been conducted by those in authority in the county of Westmoreland with care, and those invested with the discretion to determine the questions arising in this important matter are 'conceded to have brought to the consideration thereof painstaking deliberation.

Plans and specifications for the proposed new building were adopted by the county commissioners in June, 1901, and approved by both the judges of the court of common pleas. On August 2d, of the same year, a contract was awarded for the removal of the old building, and on August 10th, pf the same year, the court directed the removal of the records to temporary quarters which had been prepared for their reception. Both these undertakings were promptly carried into execution. On October 2B, 1901, a contract was duly awarded for the excavation and the construction of the foundation of the new courthouse to be erected in accordance with the adopted plans. This contract has long since been carried into execution.

Twice during the year 1902 bids for the erection of the building were duly advertised for, but no bid was received which met the approbation of all those whose approval was necessary to the contract on behalf of the county. On May 4,1903, all of the county commissioners concurred in certain modifications of the specifications, which action was upon the same day approved by both the judges of the court of common pleas.

With the amended specifications as a basis, bids were invited by public advertisement and on July 9, 1903, seve2i contractors, all of whom seemed to be responsible, submitted bids for the work; the hids having been publicly opened that of the relators was found to be the lowest and was accepted by the county commissioners. A contract for the execution of the work according to the specifications, with sureties for its faithful performance,’ having been prepared, the same was approved by one of the judges of the court of common pleas on September 26, 1903, and on the 29th of the same month the county commissioners awarded the contract for the work to the relators, and executed the contract in the form in which it had been approved by said judge. The relators entered upon the ground and proceeded to execute the work according to the terms of the contract.

The respondent does not deny that the relators did the work for which they now demand payment, nor that according to the terms of the contract the amount is due and payable ; he bases his refusal to draw his warrant for the amount upon the ground that the contract is invalid. There is -no suggestion of fraud in the letting of the contract, nor that the relators were not the lowest bidders, nor that the price agreed upon was not fair and reasonable. Bids for the work had been repeatedly asked for by public advertisement, and the attention of contractors throughout the country who were capable of performing work of this character had been directly called to the undertaking.

There is no dispute as to the facts, and it has been conceded upon the argument of this appeal that the determination of the validity of this contract involves the consideration of only two questions: 1. Was the local act of April 4, 1870, P. L. 834, entitled “ An act relating to contracts by county commissioners in certain counties of this commonwealth,” repealed by the general Act of April 19,1895, P. L. 38, entitled “ An act to regulate the erection of county buildings.” 2. If the local act of April 4, 1870, is still in force, then was its requirement as to public advertisement prior to the opening of the bids complied with.

The first question is so fully considered in the opinion of the learned judge of the court below, and the conclusion at which he arrived is so satisfactorily sustained by the authorities there cited that we do not deem it necessary to supplement what is said on that branch of the case. We are of the opinion that the local act of April 4,1870, remains in force in Westmoreland county.

This leaves for consideration the sufficiency of the public advertisement of the invitation to bidders to submit sealed proposals for the execution of the work. The provision of the statute material to the inquiry is as follows: “ The county commissioners .... before making any contract for the erec-tion of any new building or buildings, bridge or bridges, .... shall, by public advertisement, printed in not less than two weekly newspapers of the county, if so many be published therein, where the contract is to be awarded, for not less than four weeks, .... invite sealed proposals for the same according to the specifications, which shall be written or printed in a book to be kept by the commissioners for that purpose, and kept open for the inspection of all persons for at least four weeks before the time appointed by said advertisement for the opening of said sealed proposals, and which, at the time fixed, shall be publicly opened and the contract awarded to the lowest bidder or bidders.”

The specifications for the work in question had been of record in the office of the commissioners for a period considerably longer than four weeks. The commissioners determined to fix the time for the opening of the sealed proposals for July 9, 1908, at 1 o’clock p. m. The invitation for sealed proposals was first published in daily newspapers, beginning more than four weeks prior to the time fixed for the opening of the bids. The statute requires the publication to be in weekly newspapers, a term which has a well recognized meaning, that is, a newspaper published once in each week. A publication in a daily paper was not in accordance with the requirements of the statute, and such publication must be eliminated from the consideration of this question in its legal sense, however material it might be if the good faith of the officers representing the county had been called in question.

The advertisement inviting the sealed proposals for the erection of the courthouse according to the specifications of record in the office of the commissioners was published in two weekly newspapers of the county on June 16, June 23, June 30 and July 7,1903, each of said days of publication being Tuesday. The notice was in due form and the invitation was for sealed proposals until 1 o’clock p. M., Thursday, July 9,1903, at which time the bids were publicly opened in accordance with the terms of the notice. The only question is whether this publication in the weekly papers was in accordance with the provisions of the statute.

The statute is to be construed with a view to the purpose which it is intended to accomplish, to effect the legislative intention, and give effect to all its provisions. The purpose of this statute is to secure competitive bidding, upon equal terms, under conditions which give to all bidders full and accurate information as to the character of the work to be performed. The means used to accomplish the end are the two requirements, (a) that the specifications shall be a matter of public record “for at least four weeks” before the opening of the bids; (b) that the commissioners shall “by public advertisement printed in not less than two weekly newspapers of the county, .... for not less than four weeks, invite sealed proposals for the same according to the specifications.” The requirement in each case involves the element of time. The specifications must be of record “ at least four weeks; ” the invitation to bid on the specifications must be “ printed in not less than two weekly newspapers .... for not less than four weeks.” The invitation must refer to the specifications; in this there evidently was a puipose. An invitation to bid without-a reference to the specifications as' to the work to be done would be a useless and absurd thing. The things required are intended to contribute to the same end, and in order to he effective they must be done at the same time. The record of the specifications could not accomplish the purpose of the statute if the attention of bidders was not called to the undertaking; the advertisement for bids would amount to nothing if it did not, as required by the statute, refer to the record of the specifications. The expression “ not less than four weeks ” is the exact equivalent of “ at least four weeks.”

When the legislature enacted that the invitation to bid should be printed in weekly newspapers for not less than four weeks, and in the same connection required that the specifications upon which the bids were to be submitted should be of record at least four weeks, the legislative intention manifestly was that these periods of time should be concurrent. The four weeks during which the advertisement must be published are the same four weeks during which the specifications must be of record; to fix one is to determine the other. The requirement as to the specifications is that they must be of record and open to the inspection of all persons for at least four weeks before the time appointed for the opening of the proposals. This requirement would not be met by having the specifications of record for months before, if they were permitted to be withdrawn from the record during any part of the last four weeks immediately prior to the opening of the bids. The commissioners have a discretion to place the specifications of record and keep them open for inspection for a longer period, but they must do those things during the last four weeks. The requirement as to the specifications is not that they shall be of record for a certain number of days in the week, they must be of record every day of the four weeks; that is, full’ twenty-eight days immediately prior to the opening of the bids. This determines the four weeks during which the public advertisement of the invitation to bidders must be printed in the weekly newspapers. A weekly newspaper, regularly issued, must necessarily be printed four times, that is, it must have four publications within those four weeks. The commissioners have a discretion to advertise for a longer period, but no antecedent advertisement could excuse the failure to advertise weekly during the last four weeks immediately prior to the day upon'which the bids are opened.

The relation of the things required to be done by this statute to each other, the manifest intention that the publication shall be during the same period that the specifications are on file, and the clearly defined purpose that the latter period must be the four weeks ending with the day before the proposals are opened, lead us to the conclusion that the period during which the advertisement required by this statute must be printed in two weekly newspapers, for four weeks, is the last twenty-eight days prior to the opening of the bids. Computing backward from July 9,1903, it appears that, under the undisputed facts of this case, the advertisement was regularly published in two weekly newspapers during each week of said period. This answered the requirements of the statute. The invitation to bidders must be published weekly, four times, in two weekly newspapers, but the first publication is not required to be twenty-eight days before the opening of the bids. The period during which the specifications are required to be of record must determine the days upon which the weeks are to be considered as beginning and ending, for the purposes of this statute.

The judgment is affirmed.