68 W. Va. 493 | W. Va. | 1911
Lead Opinion
S. C. Butler and W. PI. Guthrie filed with the Commissioners of Public Printing, composed of J. S. Darst, State Auditor, E. L. Long, State Treasurer, and M. P. Shawkey, State Superintendent of Schools, competing proposals for doing the public binding, under chapter 16, Code 1906. The board of- commissioners awarded the contract for binding to Guthrie, who gave bond as required by the statute, and the award of the contract was approved by the governor, under section 10, and the contract was filed in the auditor’s office, the place for its deposit fixed by that section. Section 5 prescribes that the commissioners shall award the contract “to the lowest responsible bidder,” and after the contract had been awarded to Guthrie, Butler discovered that his bid was lower than Guthrie’s, arising from Guthrie’s extending into* the total column of his bid certain erroneous sums to which certain items of work would amount charged at the same rate in both bids. Then Butler asked the
The Constitution requires the Legislature to provide by law that fuel, stationery, paper, binding, and printing shall be let by contract “to the lowest responsible bidder.” Art. YL, section 34. Under that section the Legislature has enacted chapter 16 of the Code of 1906, making the state auditor, treasurer, and superintendent of schools a board or commission to publish notice for proposals or -bids for furnishing the articles and materials and doing the work specified in the statute, and vesting in that board full, ample and complete power to pass on all such bids, giving them all power over the business, subject only to the action of the governer. Our constitution and fabric of government divide governmental powers into three grand divisions, and prohibit the assumption by those exercising the powers of one of them of the just powers of another. This is a cardinal principle, a distinguished feature of our free government, always to be kept in mind; a great light which is always to be thought of in such cases as the present. The functions of the Commissioners are very important in public administration, and are an essential part of the executive department. The judiciary must be very cautions when it interferes with the functions of the executive department. It was said by able men in an early period of our country’s history that the courts were usurpatory of power, and inclined to dominate over other branches of government. The courts should not justify this charge. It does seem that the constitution and statute intend and mean to invest the matter before us exclusively with this executive board erected by the Legislature, under the mandate of the Constitution to deal with it. It is executive or political action, not judicially reviewable. It would seem that it was never intended that such matters should in anywise fall under the supervision of the courts, and be the subject of private litigation. If so the public wheels might be impeded. The Legislature might meet and find its supplies for business involved in a law suit. So with the public
A bidder might be worth thousands, and yet be dissipated, negligent, dilatory or dishonest, and therefore not responsible. There is no such imputation against Butler; but I speak of the character of the official functions as discretionary, and therefore mandamus does not lie.
In State v. Board, 24 Wis. 683, it was held that where the
Butler goes on the theory that the statute confers on him a right calling for' mandamus; but I find it laid down in Page on Contracts, section 1049, that “sjich statutes are intended for the benefit and protection of the public, rather than that of the bidders * * * and they confer no absolute right upon a bidder.” This rule seems well supported as denying mandamus. State v. Eaves, 28 L. R. A. 298 (50 Am. St. R. 476). In High, Extra. L. Rem., sec. 92, it is laid down that duties of letting to the lowest bidder for public work is not a ministerial duty, “but involves the exercise of such a degree of official discretion as to place them beyond control of the courts by mandamus. And the true theory of all statutes requiring the letting of such contracts to the lowest bidder is, that they are designed for the benefit and protection of the public, rather than that for bidders, and that they confer no absolute right upon a bidder to enforce the letting of the contract by mandamus after it has been already awarded to another.” The case of Ginn & Co. v. School Booh Board, 62 W. Va. 428, holds that the school board cannot be compelled by mandamus to renew a contract for another period. Its principle and eases it cites will sustain the position that the statute involved in this case was not made for the benefit of the bidder, and confers upon him no title or right enforceable by mandamus, and moreover that the printing board has discretion so as not to be subject to mmidaimus. It makes no difference that the pecuniary responsibility of Butler was not and is not questioned. It does not change the cast of the function of. the board; it does not take away their discretion.
Another question has suggested itself. The contract was complete, and as a mandamus does not go to reverse a completed act, it does not here lie, unless we can regard the action of the board void as if without jurisdiction; but as it had clear jurisdiction over the matter, it would be rash to say that its act is void.
The question is made by counsel whether an additional reason against awarding the writ is not found in the claim that the suit is against the State and therefore prohibited by the Constitution. We do not decide this point. It may be said no liability is sought to be imposed upon the state, nor is her property affected; yet her officers are sued only because they are such, and having no personal interest, and the law is that the prohibition of suit against the state cannot be evaded by circuitous action in making the officers parties. This suit is to establish a contract imposing liability on the state, which it would recognize, though no suit could be brought on that contract. A mandamus for relief in such a case as this was held a suit against the state in Mills Pub. Co. v. Larrabee, 78 Iowa 97. See Miller v. Board, 46 W. Va. 192.
The case of Dillon v. Bare and Carter, 60 W. Va. 483, will not justify mandamus in this case. There it was held that the officer had shirked his duty, made a false and fraudulent valuation, no performance of duty at all. Besides, there a public officer representing the- interest of the state sought to have a public officer execute a law requiring assessment of taxes, a law for the sole benefit of the state; whereas here is an individual seeking to enforce an act made to further state interest, not an indi-vidüal’s.
■ We refuse the mandamus. Writ B,efused.
Dissenting Opinion
(dissenting):
As this case involves the construction of an important statute and definition of the functions of the writ of mandamus, and
There are a few cases in which it has been held that statutes like this one were made for the benefit of the public and, therefore, vest irreviewable discretion in the officers, charged with their administration. I agree that they are intended to sub-serve the public interest, but I do not agree that this is accomplished, if they are to be construed as having vested unlimited power in the officers. Such a construction defeats that purpose. The public interests are best secured and protected by the enforcement of the rule of conduct, found in the terms of the statute. While the respondents here have acted honestly in the matter, the commission may not alwlays be composed of men who will do that, and this decision leaves it in the power of the commissioners of printing, at any time in the future, to award the contract as they please, if they shall chance to be men not altogether scrupulous. It may be truly said, that such an event is not likely to happen, but a statute ought to be so construed as to provide against possible, as well as probable, injury to the public interest. It is perfectly logical and consistent to say that the framers of the constitution and the statute intended to vest in the bidder a right which the law would vindicate by compelling the commissioners to award him a contract, if he
The majority opinion does not say the statute is merely directory, but it really makes it so. It is mandatory in form, and the recognition of the right of the lowest bidder by the award of the contract to him, no question of responsibility being involved, is the essence of the function required of the commissioners. It is the very heart and soul of the statute. Without that restraint upon their powers, they may do what they please and the purpose of the statute will be wholly defeated, if they should be so disregardful of the public interest as to favor a particular bidder, by reason of some improper motive, such as fear or favor.
• By far the greater number of cases in which this writ has been refused included something other than the relative amounts of the bids. In other words, the question of responsibility or fitness of the bidder, or compliance with some of the conditions, laid down for observance by the bidders, was involved. The whole law of the subject is carefully reviewed in State v. Rickards, 16 Mont. 145, cited in the majority opinion. That case holds that the respondents had discretionary power and that their decision upon the facts could not be reviewed. The printing required, under the contract, had to be done within a limited time and the question upon which the decision of the
But discretion in the commissioners, extending to all phases of their work would not necessarily bar the remedy invoked. Officers exercising the discretionary powers cannot act arbitrarily. Season must govern their action.. They cannot say a clearly responsible man is irresponsible; or that a bidder has not complied with conditions, when he obviously has. Neither ignorance, a fanciful, groundless notion as to law, nor fraud will be permitted to bar the writ. The suggestion that only collusion or fraud will do so is too narrow. The authorities go beyond that. Judgment as well as honesty must be put into effect. Dillon v. Bare & Carter, 60 W. Va. 483; Glencoe v. People, 78 Ill. 382; State v School Directors, 134 Mo. 296; State v Kellogg, 95 Wis. 672; State v. Johnson, 103 Wis. 591; Briggs v. Hawkins, 16 R. L. 83; Sparrow’s Petition, 138 Pa. St. 116; Brewing Company’s Petition, 127 Pa. St. 523; Dental Examiner v. People, 123 Ill. 227. This principle has been enforced on applications for the writ by bidders, entitled to awards. State v. Commissioners, 39 O. St. 188; People v. Contracting Board, 46 Barb. 254. In the former case, the commissioners rejected the lowest bid on the theory of irresponsibility of the bidder. The court said: “We are satisfied from the evidence, after carefully considering it, that the commissioners acted in good faith, under the mistaken advice and belief that ample discretion was vested in them to reject the bid of the relator, upon the information which they had. We are equally satisfied, that, whether any discretion is vested in them or not, they acted upon insufficient information, and to some extent incorrect information, and that they offered the relator no opportunity to put them in possession of the real facts, before
Neither is the writ barred by complete action by the commissioners. The authorities are almost uniform to this effect, only an occasional case to the contrary being found. Take all our election cases, in which boards of canvassers and other tribunals have been compelled to go back and legally and correctly do what they had improperly done. Take also the New York and Ohio decisions, just analyzed, and all the other cases, here cited, for the proposition that abuse of discretion will be controlled by mando/mus. In Dillon v. Bare & Carter, every member of this Court said the fact that the assessors had completed their work of valuation did not bar the writ. Three refused it on the ground that they had not acted arbitrarily, and the other two, thinking they had, voted to grant the writ.
Nor do I think there is anything in the suggestion that Dillon v. Bare & Carter can be distinguished by reason of the status of the relator. I have already cited numerous cases in which the relators were private persons.
This is not a suit against the state. Neither the awarding of this contract nor its execution will bind the state to pay anything. It is entirely optional with the legislature to pay for the printing and binding, after it shall have been done, or not. Thé statute contemplates such an appropriation. By making it, the legislature will set aside the fund for the purpose, and consent that those entitled to it may have remedies against the administrative officers to obtain it. The respondents are not proceeded