Free Press Ass'n v. Nichols

45 Vt. 7 | Vt. | 1872

The opinion of the court was delivered by

Royce, J.

The petition of the relator is for a writ of mandamus to issue against the defendants, commanding them to examine the' sealed proposals for the state printing which were deposited in the office of the secretary of state on or before the 10th day of July, 1872, and none others, and therefrom to accept the one most advantgeous to the state,’and at once thereafter notify the party making such proposal, and close the contract for said printing in accordance with such proposal so accepted, and that such further .order may be had in the premises as justice may require. •

One of said proposals was deposited in the office of the secretary of stale by the relator, and the object of the relator is to compel the defendants to examine and act upon said proposal in exclusion of all others not so deposited. This petition was served on the 29th of July, 1872, and it is admitted that the contracts for the state printing were awarded to J. & J. M. Poland and Willard & Wheelock on the 15th day of July, 1872, at an expense of at least $2,000 dollars less than the proposal made by the relator and that made by Camp & Cummings, which were the only ones that the relator claims the defendants had the right to consider and act. upon. If the defendants had the legal right to award the contracts, their power and authority over the subject was exhausted when the awards were made, and this would be conclusive of the relator’s right. In considering this question, it becomes important to en-quire what construction should be put upon the act of 1867 under which the parties acted. The first section requires that the secretary of state, on the first week in June, shall advertise in one weekly newspaper in each county where there is one printed, for sealed proposals. This requirement is "mandatory upon the officer. It is positive and certain, and leaves nothing to his discretion. It then provides that said advertisement shall state the matter to be printed, and the form and style of the same, and when to be completed, "and that said sealed proposals must state the character of the work proposed to be done, and must be deposited in the secretary of state’s office on or before the 10th day of July thereafter.

The second section provides that on the third Monday of July in each year, the secretary of state and the auditor of accounts shall publicly open and examine said sealed proposals, and shall accept the one most advantageous to the state.

Courts in construing statutes are to give effect to the intent of the law-making power, and are first to seek for that intent in the words and language employed, and if this is free from ambiguity, and expresses clearly the sense of the framers, there is no occasion for resorting to other means of interpretation; but when the sense is not thus expressed, the intent is to be deduced from the context, the occasion and necessity for the law, the mischief felt, and the object and remedy in view.

Previous to the statute of 1867, the secretary of state was required, between the first days of June and August, to receive proposals for printing such matter as was required to be published, and was to contract with such person or persons as should offer the best terms. He was not required to advertise for proposals, and was constituted sole judge as to what proposals he would receive and act upon in awarding contracts.

One of the mischiefs of the law was that there was no compulsory mode provided of giving general notice that such contracts would be made, and the objects and remedies proposed by the act of 1867 were, by compelling the advertisements, to induce competition, and thus secure the execution of the work at a reasonable price, and to protect those who might bid for the work against favoritism by the officers whose duty it would be to award the contracts. The principal object of the law was to benefit the state. Where the terms of a statute leave room for any administrative discretion to be exercised, it cannot be interpreted to be mandatory. Potter’s Dwarris, 222, and note 29. And a statute directing the mode of proceeding by public officers, is to be deemed directory, and a precise compliance is not to be deemed essential to the validity of the proceedings, unless so declared by statute. People v. Cook, 8 N. Y. 67.

The requirement in the advertisement as to the time when proposals were to be deposited in the secretary’s office, was not intended as a limitation of power upon the part of the officers in examining and acting upon proposals. The essence of the thing required to be done by the secretary of state and auditor of 'accounts was, that they should, on the third Monday of July, accept the proposal most advantageous to the state. It stands admitted that this duty was performed.

The writ of mandamus is subject to the legal and equitable discretion of the court, and ought not to be issued in cases of doubtful right. Life and Fire Insurance Co. v. Wilson’s Heirs, 8 Peters, 291. And in this case we think the writ should not.be awarded. The petition is dismissed with costs.