16 Nev. 217 | Nev. | 1881
By the Court,
Uuder the statute of this state, passed at the last session of the legislature (Stat. 1881, 59), respondents invited proposals for the erection of an insane asylum at Eeno, according to plans and specifications previously adopted. Bids were presented by different parties, and among them were those of plaintiff, offering to furnish all materials and do all the work for the completion of the buildings, for the sum of fifty-two thousand dollars, and of certain citizens of Eeno offering to furnish the same materials, and do the same work, for the sum of sixty thousand dollars. After a careful examination, upon the knowledge of the commissioners and evidence received touching the responsibility of the several bidders and their sureties, the contract was awarded to the citizens of Eeno, last named, for the sum of sixty thousand dollars, upon the ground that theirs was the lowest responsible bid. Plaintiff has applied to this court for a peremptory writ of mandamus to compel respondents to cancel the award made as aforesaid, and to award said contract to him as the lowest responsible bidder.
In their answer, respondents deny that plaintiff’s bid was the lowest responsible bid, and allege that the bid accepted, the citizens’ bid, was such. They deny that plaintiff can build the buildings specified in the plans and specifications for the sum of fifty-two thousand dollars, or that he has the requisite credit or means to build the same for less than about sixty thousand dollars. They deny that all the sureties upon the bond offered by the plaintiff can qualify for the sums they propose to become sureties for, on said bond, under the several exactions of the law respecting property exempt from execution, or over and above all their debts and liabilities. They deny that plaintiff’s bid is reasonable
They allege that all bids offered were carefully considered with reference to the responsibility of the sureties offered, and as to whether said bids were made in good faith with the purpose of erecting said buildings according to the plans and specifications; that from the testimony of skilled experts, they ascertained that they could not be accordingly erected for less than fifty-eight thousand dollars; that after laborious examination and inquiry they came to the conclmsion that the so-called “citizen’s bid” was the lowest responsible bid, and that, therefore, they awarded the contract to the persons named therein. They also allege that, after examination, they considered the bids of Gross & Scrog-gins, and William Thompson, lower responsible bids than plaintiffs. They aver that, in awarding said contract they have strictly complied with the statute under which they derived their powers; that they have acted according to their best judgments, for the best interest of the state, and with due regard to the legal rights of the bidders.
It is neither alleged nor claimed that, respondents have not acted in entire good faith. Neither fraud nor negligence is urged against them; nor .is it asserted, in any way, that they have been guilty of the exercise of favoritism. It follows that, at most, their fault is an error in judgment in determining that the bid for sixty thousand dollars is the lowest responsible bid.
Section 5 of the statute referred to provides that, “said board may adopt or reject any and all bids not deemed reasonable or satisfactory, but in determining bids for the same work or material, the lowest responsible bid shall be taken.”
The provision that they shall take the lowest responsible bid is mandatory, and they had no power or authority to accept any other, but in ascertaining whether or not a bidder was responsible, they were required to deliberate and decide, and in doing so, they exercised judicial, not ministerial, functions.
And in deciding upon the responsibility of bidders, it
Agreeing then, as we do, with the common pleas, that the duty imposed upon the respondents was deliberative and discretionary, we must also admit the conclusion reached by
A subordinate body can be directed to act, but not how to act, in a matter as to which it has the right to exercise its judgment; and where it is vested with power to determine a question of fact, the duty is judicial, and however erroneous its decision may be, it can not be compelled by mandamus to alter its determination. Such has been th.e uniform decision of this and other courts. Where no discretion is given to an officer or body, mandamus lies to enforce a performance of the specific act required; but it is otherwise when the duty imposed requires deliberation and decision upon facts presented. It was for the board in this case to determine the lowest responsible bidder. They had no right to accept the lowest bid if they rvere not satisfied with the responsibility of the bidder, according to the definition of the word “responsible” given above. They had the right to reject plaintiff’s bid, and such Avas their duty, if, after examination, it was not, in their best judgment, the loAvest responsible bid. The testimony before us is-ample to show that, the board acted conscientiously, after faithful examination of all facts within their reach touching the questions here discussed, and their decision can not be disturbed in this proceeding. Mandamus denied, with costs against plaintiff.